Opinion
January 4, 1911.
Henry V. Borst, for the appellant.
George M. Albot, for the respondent.
The action was brought to obtain an accounting between the plaintiff and defendant, as members of a copartnership. The complaint alleges that in August, 1905, the parties entered into a copartnership for the purpose of grinding, buying and selling flour, feed and grain; that the business was carried on under the agreement until August 31, 1908, when the copartnership was dissolved by mutual agreement; that the business had earned a net profit of $6,000; that the plaintiff had received only $897.24 and all the other moneys and receipts of said firm were retained and under the control of the defendant, and that no accounting or settlement of the partnership affairs had been had. The referee found as facts that there was a net profit arising from the business of $2,542.38; that the plaintiff had received $1,248.50, and the defendant had received $768.17 and had in his possession to be collected by him $525.71 of uncollected bills.
He found as a conclusion of law: "That there is due and owing to the plaintiff on account of the one-half net profits of said business $22.69 when the bills receivable amounting to $525.71 are collected." and "That the plaintiff is entitled to judgment against the defendant for the sum of $22.69 together with the costs of this action." A judgment was thereupon entered in favor of the plaintiff and against the defendant for the sum of $22.69 and $404.86 costs and disbursements.
The bare statement of the findings of fact clearly shows the impropriety of charging the defendant with the amount of the uncollected accounts and of providing for a personal judgment against the defendant. The judgment is utterly unwarranted by the facts found, especially so, in the absence of a finding that the defendant had converted the accounts or that they were good and collectible.
The plaintiff having received $480.33 more than the defendant could have no claim against the defendant for contribution until the defendant has received more than an equal amount. It seems to me clear that the judgment is not only in conflict with the facts found but it is grossly unjust. It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event.