Widow & Heirs of King v. Wartelle ( 1859 )

Buchanan, J.

The late George King and tlie defendant, on the 13tb of May, 1829, entered into a partnership, “ in the business of cultivating cane and making sugar.”

The contract of partnership was in the form of an authentic act, and stipulated :

1st. That certain lands particularly described, belonging to the parties either jointly or individually, should be “ employed in cultivation for the use of the said copartnership, so long as it shall continue to exist.” ,

2d. That the parties should “ each furnish an equal force of slaves for the purpose of cultivating and carrying on said business, the said slaves to be at the risk of their respective owners.”

3d. That expenses for buildings, &c., should be equally borne, and the buildings, &c., so bought and constructed, should be common property.

4th. Advances in cash, made by either partner, to be reimbursed out of the proceeds of the next crop ; or if not then reimbursed, for want of means, to have an interest of ten per cent.

5th. “ At the end of every year, or when the crop shall have been disposed of, and the expenses paid, the net proceeds shall foe divided, equally, between the said partners.”

The last crop made for the account of the partnership upon the land described in the first Article of this contract of partnership, was so made in the year 1839.

In the month of February, 1840, George King, having purchased a tract of land in the Bellevue prairie, of one Gray, removed all the slaves belonging to him, from the plantation cultivated in partnership by himself and defendant, to the tract of land thus purchased, and put an end to the partnership.

George King died in November, 1850 ; and in Oct., 1851, his heirs bring this suit against the defendant, for “ a full and complete account of his administration of the affairs of the said partnership,” and pray “ that he be condemned to pay to plaintiffs such sum as he may be found to owe, on a fair settlement of the partnership accounts.”

The defendant pleads the prescription of ten years to this action; and the plea, in our opinion, is well taken. The partnership was dissolved more than ten years previous to the institution of this suit; and the action of one of the partners, or his representatives, against the other partner, for an account, and for the balance resulting from such an account, is a personal action, which is prescribed in ten years.

All the parties are residents of the parish of St. Landry. O. 0. 3508.

After the plea of prescription was filed in the cause, the plaintiffs filed an amended petition, with leave of court, praying for a partition of the undivided tracts of land, and other undivided property held in common by the parties, under their contract of partnership.

The defendant excepted to this amendment as altering the nature of the demand. The District Court overruled the exception ; and the defendant, under reservation of his exception, answered the amended petition, assenting to the partition of two tracts of land, which he averred to be the only property of the parties still remaining undivided.

While we concur with our brother of the District Court in allowing the amendment offered by the plaintiffs, for the reason, that there is nothing in it inconsistent with the original petition, we cannot give it the effect which the learned counsel of plaintiffs claim for it, of absorbing, as it were, the original action, and giving to that, a vitality beyond the limit assigned to it, by the Article of the Code above quoted.

The Article 2861, upon which the plaintiffs rely, does not say, that the action for the settlement of partnership accounts, is governed by the same rules, as the action of partition of inheritances among heirs.

That Article, which is the last in the title of “ partnership” in the Code, reads as follows:

“ The rules concerning the partition of inheritances, the manner of making such partition, and the obligations which result from the same between heirs, apply to partners.”

The meaning of the legislator is, obviously, that the rules of partitions among heirs, apply to partitions among partners; not that the rules governing the action of partition among heirs, apply _ to all actions which may be exercised by one partner against another.

The judgment of the District Court rejects the action of plaintiffs for a settlement of partnership accounts ; and sustains that for a partition of the property remaining undivided between the partners.

For the reasons above given, the judgment appealed from is affirmed. And it is further decreed, that plaintiffs and appellants pay the costs of appeal.