Fanning v. Chadwick ( 1826 )

Wilde J.

delivered the opinion of the Court. Without determining whether, upon the facts reported, the parties are to oe considered as standing in the relation of copartners, or not, we are of opinion that this action may be well maintained. It is true, generally, that a partner or tenant in common cannot sue his cotenant or copartner in an action in form ex contractu, for a share of the common property, or profits received. But if the joint interest is determined, or the partnership is dissolved, all accounts and liabilities being settled and discharged, and a balance remains due from one cotenant or copartner to another, it may be recovered in an action of assumpsit. It is said that an express promise is necessary, and such seems to be the English doctrine. But a contrary doctrine has been repeatedly laid down by this Court. Jones v. Harraden, Brigham v. Eveleth, Bond v. Hays, and Wilby v. Phinney, cited in the argument.¹

The doctrine laid down in these cases appears to us most reasonable, and we consider it now as well established. It was admitted by the counsel for the defendant in the case of Wilby v. Phinney, and was expressly laid down by the Court as a settled principle.

It is true that case was decided on its peculiar circumstances, but the principle in question was involved in the decision. Phinney was administrator of a deceased partner of Wilby, whose estate was insolvent, and the Court held that the plaintiff’s demand was in nature of a final balance, although, the accounts of the partnership were not closed. For it was final as to the plaintiff, he having no further remedy, in any event, against the estate of the deceased partner. On this ground it was held that he was entitled to recover as for a fina, balance.

This case, therefore, as well as the other cases cited, is directly in point; and we see no reason for overruling these decisions, notwithstanding relief may now be had in equity. Besides, this action was commenced before the statute for this purpose was enacted. But had it been otherwise, we should still feel bound to adheie to former decisions. When a plain, convenient, and adequate remedy may be had at law, a party ought not to be turned over to a suit in equity. It has been argued that the only remedy at law, if any, is by action of account; but this action is almost obsolete even in England, and there seems to be no necessity for reviving it here. Justice may be administered in a form more simple and less expensive, by an action of assumpsit; especially since the Court is authorized to appoint auditors. Assumpsit now has all the advantages, without the disadvantages, peculiar to an action of account.

For these reasons we are of opinion the plaintiff is entitled to recover, the voyage having been completely settled by the parties, except as to the items sued for in this action.¹

Judgment according to the verdict.

1 See also Williams v. Henshaw, 11 Pick. 79, and 12 Pick. 378; Brinley v. Kupfer, 6 Pick. 179; Johnson v. Ames, 6 Pick. 330; Chandler v. Chandler, 4 Pick 62; Haskell v. Adams, 7 Pick. 59; Stiles v. Campbell, 11 Mass. R. 321.

1 See Brigham v. Eveleth, 9 Mass. R. (Rand’s ed.) 542, n. (a); Willy v Phinney, 15 Mass. R. (Rand's ed.) 121, n. (a); Bovill v. Hammond, 6 Barn. & Cressw. 149; S. C. 9 Dowl. & Ryl. 186; Clarke v. Glennie, 3 Stark. R. 10; Fromont v. Coupland, 2 Bingh. 170; Westerlo v. Evertson, 1 Wendell, 532; Andrews v. Allen, 9 Serg. & Rawle, 241; Kennedy v M'Fadon, 3 Harr. & Johns. 194; Causten v. Burke, 2 Harr. & Gill, 295; Roache v. Pendergast, 3 Harr. & Johns. 33; Barger v. Collins, 7 Harr. & Johns. 213.