Morrow v. Riley , 15 Ala. 710 ( 1849 )

COLLIER, C. J.

It does not appear from the record, that the partnership between the parties in the Monroe Springs and house of entertainment was dissolved, even at the time of the trial in the county court; but conceding that it was previous to the institution of the suit, and the question is, whether there had been such an adjustment of the accounts, as authorised the plaintiff to recover in the present action the balance alleged to be due him ? In Phillips v. Lockhart, 1 Ala. Rep. 521, it was decided, that a party cannot maintain an action at law for money paid by him, on account of a partnership between himself and the defendant, although the partnership has been dissolved, and the money Was paid after its dissolution: Further, “ It is well settled that one partner cannot maintain an action at law against his former partner, even after a dissolution of the partnership, unless there be a settlement of accounts, a balance struck, and according to some authorities, an express promise to pay it.” So in Grigsby v. Nance, 3 Ala. Rep. 347, we said, courts of law will not entertain suits for the recovery of money due form one party to another, by simple contract on the partnership account, because it would be useless for one partner to recover, what upon taking a general account amongst all parties, he might be liable to refund ; frustra peterit quod mox restiturus esset.

In the case at bar, Moore was requested by the parties, to make out an account current from their partnership books, and in their presence ; by this account the parties undertook to settle, but if they could not agree, they were to call on two persons designated, to adjust the matter, and the party against whom the balance should be found, should pay it to the other. The defendant when afterwards called on, refused to attend the accounts to be taken by Moore, but the latter at plaintiffs instance and in the absence of both parties, examined the books, made out an account current, and struck a balance. For the balance thus ascertained this action is brought.

Now it is perfectly clear that the defendant did not undertake to admit in advance the account which Moore might state from the books as a correct exposition of the dealings between the parties. Neither of them were to be bound by it. This is indicated by the stipulation to submit the matter to the arbitrament of other persons, if they could not agree upon the balance thus struck. It seems that they disagreed, and it does not appear that the referees ever acted in the business. There is then no pretence for assuming that a balance was so adjusted as to entitle the plaintiff to recover.

It is needless to examine, with particularity, the ruling of the county court, as it is strikingly opposed to the view we have taken, and the transaction in question, instead of being disconnected from, and independent of the partnership dealing, is intimately blended with,- and essentially a part of them. We have but to add, that the judgment is reversed, and the cause remanded.