Gomersall v. Gomersall , 96 Mass. 60 ( 1867 )

Bigelow, C. J.

This demurrer must be sustained. The declaration includes a claim for profits by one copartner against another, alleged to be due to the plaintiff as a member of a co-partnership, and derived from the joint transactions of the firm. It is not averred that the business of the firm has been closed and its dealings and accounts adjusted and settled, so that there is now due to the plaintiff as the result of all the copartnership transactions an ascertained balance in money. Without such averment, no action at law can be maintained by the plaintiff for that portion of the claim set forth in the declaration which embraces an alleged share of the profits of the business of the firm as due to the plaintiff. Such averment and proof to sustain it are essential to the maintenance of an action at law by one copartner against another, to recover a balance resulting from the joint dealings. Williams v. Henshaw, 11 Pick. 81 S. C. 12 Pick. 378. Capen v. Barrows, 1 Gray, 376. As the declaration is for an entire claim, and embraces a subject matter on which an action at law will not lie, we cannot be called on in the form in which the case is now before us to say whether some portion of the allegations in the declaration, when set forth as a distinct and substantial ground of claim, will support an action at law. As the case now stands, the order must be

Demurrer sustained.