Opinion
(June Term, 1861.)
Where it appeared that during a copartnership of eight years duration, there had been occasional calculations of interest and summing up of results and a division of profits, but no surrender of vouchers or cancellation of books, nor release, nor receipt in full, it was Held, that the transactions were not of such a conclusive nature as to bar an account.
CAUSE removed from the Court of Equity of YADKIN.
The plaintiff and defendant had been partners in the business of buying and selling slaves from the year 1847 to 1855, during which time large profits were realized from the business, amounting in the latter years of its continuance to as much as twelve thousand dollars. The plaintiff was the more active partner in buying and selling, and the defendant kept the books in which their dealings were entered. It appeared that the entries were mostly made at the dictation of the plaintiff and at stated periods, generally once a year, the plaintiff and defendant together made calculations of interest upon the entries and divided the profits according to the terms of their copartnership, that is, equally. Sometimes errors in former computations were detected and (239) corrected in their subsequent ones. The defendant insists, by his answer, that a full, fair and conclusive settlement took place between the parties up to April, 1857, and that each party then received his share of the profits then on hand. Afterwards, in 1858, it appears that there had been collected some small debts due the concern, which were accounted for between the partners, and a loss of a debt, by the failure of an attorney in Georgia, also accounted for and divided between them. There was also, at this time, a rectification of the account and settlement of 1857. The answer sets forth the book containing their dealings, and insists that at each of these computations of interest and divisions of profits there was intended to be, and in fact was, a full and final settlement of all previous matters, and especially was the settlement of 1857 thus final and conclusive, and he relies upon the same as a bar to a further investigation of the dealings of the partnership.
There was some testimony taken, and the cause set down on the bill, answer, exhibits and proofs and sent to this Court by consent.
Clement, for the plaintiff.
Boyden and Mitchell, for the defendant.
The parties to this suit were partners in buying and selling slaves from 1847 to 1855, and the bill is filed for an account and settlement of the partnership dealings. The objection brought forward in the answer to the account asked for is that there has already been an account stated between the parties, and a settlement in pursuance of it.
The Courts are averse to unravelling accounts that have once been settled between parties competent to deal with each other, and hence it is a fixed rule not to do so where the accounts have been complete — freely assented to and made the basis of a settlement (except in the case of bills surcharging and falsifying). As evidence of the required conclusiveness of a settlement to bar an account, it is usual in the plea to aver a surrender of vouchers. Between the parties before us there has been no change of the custody of papers, no cancellation of books, nor (240) release nor receipt in full, and, upon the whole, we are not satisfied, upon an examination of the testimony, that any account has ever been stated and conclusively agreed upon by the parties. There has been an occasional calculation of interest and summing up of results as they appeared upon the books of the partnership, and a division of profit balances; but inasmuch as there has been no final account at any time stated between them, our inference is that none of the transactions referred to were considered conclusive, even as to the matters embraced, but mere stages in their books to guide them in partial settlements. We find the parties rectifying the settlement of April, 1857 (the one insisted upon as conclusive), and we find them again accounting together in April, 1858, and dividing the balance. In the present state of the case, we do not enter into the matters of controversy between the parties: we hold simply that what appears to us in this case, that is, the striking of balances from time to time upon the partnership books, to aid in making a partial division of effects, is not such an accounting together as will bar a bill for a full account of partnership transactions.
PER CURIAM. Decree for an account.
Cited: Rhyne v. Love, 98 N.C. 493.