Opinion
No. 35645.
June 12, 1944.
1. PARTNERSHIP.
Where former partner during the 11 years that he lived following alleged sale of partnership property to copartner and removal from state made no demand for payment therefor, suit by former partner's administrator after former partner's death had disqualified copartner from testifying for dissolution of partnership, and value of decedent's interest therein which allegedly had remained invested in partnership was barred by "laches."
2. EQUITY.
"Laches," a rule peculiar to and inherent in courts of equity, is applied where it would be practically unjust to give a remedy, either because plaintiff's conduct has been such as might be fairly regarded as a waiver of remedy or has put adverse party in a situation in which it would not be reasonable to place him if the remedy were to be afterwards asserted.
3. EQUITY.
A long delay in prosecution of rights raises a presumption of laches so that equity will not entertain a suit for enforcement of such rights, though no express statute of limitations is available, unless facts are shown which will rebut the presumption of injustice arising out of undue delay or which will excuse such delay.
APPEAL from the chancery court of Monroe county, HON. ALVIS MITCHELL, Chancellor.
Paine Paine, of Aberdeen, for appellant.
Partners, as between themselves, are said to be trustees and it has been held that the statute of limitations will not run against their liability to account to each other during the continuance of the partnership.
40 Am. Jur. 364, Sec. 333.
Where, however, the partnership is dissolved by the death of one of its members, the statute of limitations does not begin to run against the right of his estate to sue for an accounting and settlement until the granting of letters of administration thereon.
40 Am. Jur. 369, Sec. 343.
The chancery court is the proper forum in which the administrator of the estate of a deceased partner should maintain his suit for an accounting and settlement of the partnership business.
Code of 1942, Secs. 554-560; 40 Am. Jur., p. 342, Sec. 306, par. 3, p. 361, Sec. 330.
McFarland Holmes, of Aberdeen, for appellee.
The original bill shows on its face that if anything at all was due Stacy Gilleff by James Toney, it was a fixed amount of $1,388.47 which was due August 23, 1932, and, of course, any claim for this amount has long since been barred by the statute of limitations.
We do not believe that the court will require an accounting on the part of James Toney after all these years of silence on the part of Stacy Gilleff, and we believe the decree of the lower court sustaining appellee's demurrer will be affirmed.
J.O. Prude, Jr., of Amory, for appellee.
It is our contention that the demand now made by the personal representative of plaintiff's intestate is stale, barred by the laches of both complainant's intestate and his personal representative, a party to this action, and barred by the statute of limitations.
Prewett et al. v. Buckingham, 28 Miss. 92; Hutchinson v. Sperry, 158 App. Div. 704, 143 N.Y.S. 876, (rev. 79 Misc. 523, 140 N.Y.S. 220, and aff. 214 N.Y. 616 mem., 108 N.E. 1097 mem.); Glock v. Weikel, 149 Ky. 170, 147 S.W. 897; Van Vleet et al. v. Sledge et al., 47 F. 743; Griffith's Mississippi Chancery Practice, Sec. 182; Gow on Partnership, p. 102; Angel on Limitations (2 Ed.), p. 160; 47 C.J. 806, 1210.
Argued orally by Thos. F. Paine, for appellant.
Appellant filed his bill for the dissolution of an alleged partnership composed of appellant's intestate and appellee. Accounting was prayed for. As exhibit to the bill there was filed an alleged accounting showing the respective interests of the four partners. Each net interest was computed at $1,388.47, and the memorandum indicated an indebtedness due by appellee to each of the then partners consisting of the parties hereto, Chris James and Naum James. The bill alleges that this memorandum disclosed the basis of the sale of the partnership property, a bakery, to appellee. In fact, it is alleged that two partners, Chris and Naum James, did pursuant thereto sell their interest to appellee, but that appellee remained indebted to Stacy Gilleff for his interest in the bakery in the sum of $1,388.47. It is further alleged that appellee "failed to pay Stacy Gilleff the sum of money due him but the said amount remained invested in said bakery, and Stacy Gilleff's one-fourth interest in said bakery, as a partner therein, continued in existence." Complainant prayed for the value of his share with interest and an accounting of profits since August 23; 1932, the date of the memorandum. Demurrer was sustained and the bill dismissed.
We need not examine appellee's contention that if the memorandum is a stated account it is barred by limitation, nor whether the partnership was dissolved pursuant to the memorandum. As stated, this memorandum was dated August 23, 1932. The bill discloses that Gilleff moved away, and died in the City of Detroit, February 14, 1943. No demand is revealed for the alleged balance due him, nor any course pursued by him for nearly eleven years.
The bill reveals no demand by him during his lifetime, which period extended nearly eleven years after execution of the settlement basis upon which his representative now stands. Such delay in these circumstances amounts to laches. The rule laid down in Comans v. Tapley, 101 Miss. 223, 57 So. 567, Ann. Cas. 1914B, 307, is thus stated in Griffith, Chancery Practice, Sec. 33. "It is a rule peculiar to and inherent in courts of equity; and it applies where it would be practically unjust to give a remedy, either because the appellant has by his conduct done that which might be fairly regarded as equivalent to a waiver of his remedy, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were to be afterwards asserted. A long or protected delay in the prosecution of rights is presumed to have produced the situation last mentioned and equity looks with so little favor upon such prosecution that it will not entertain them, although no express statute of limitations is available, — unless facts are shown which will rebut the presumption of injustice arising out of the apparently undue delay, or which will excuse the same." Where, as here, the appellee has, by the death of Gilleff, been disqualified from testifying to defend the account upon its merits, the principle is given added force.
Affirmed.