Glenn v. Hebb ( 1841 )

Arches, J.,

delivered the opinion of the court.

This was a bill filed by Glenn, administrator of Lindenherger, one of the firm of Lindenherger Hebb, against ILebb, the surviving partner, to obtain an account and settlement of the partnership transactions. Ilehb filed his answer admitting the existence of the partnership, and that it continued, until dissolved by the death of Lindenherger in 1825; that in 1821, the firm being embarrassed and involved in difficulties, Hebb undertook the settlement of the partnership concerns for a sum of one thousand dollars, to be annually allowed him for his services in this respect, and became the purchaser of the goods on hand in 1821, to be paid for, one-fifth in ten months, and the balance in two, three, four, and five years; that he pi’oceeded to the discharge of his duties in closing the accounts of the concern, and he avers, that upon such settlement, the concern is largely indebted to him. He further avers, that some of the books and papers of the concern were burned by accident in the year 1833. It appears that the complainant administered on the estate of Lindenherger in the month of June, in the year 1832, and filed this his bill on 5th April, 1837. By agreement of the parties, the case was submitted to the Chancellor on bill, answer, and general replication, to determine whether there should be a decree to account. No replication was in fact filed.

We must, as we apprehend, however, consider the case as if a replication had in fact been filed, for the agreement indicates that the case was to be heard by the Chancellor upon bill, answer and replication. Such was the dear understanding of the parties, and we cannot, without injustice, consider the answer as not replied to.

In this view of the agreement, the cause is set down for hearing, and the facts set out in the answer as a defence, are denied.

The partnership is stated in the bill, and is confessed by the answer, and in such case the general rule is, that an account is of course, unless the party has slept upon his rights.

It is objected, that this case furnishes an exception to the general rule, and that lapse of time bars an account. We shall not examine the question, whether this defence should have been reüied upon in the answer, to be available, because we do not believe that such a defence would be legitimately made under the circumstances of this case. It is true, the partnership existed in this case for a long period, but it never was dissolved, till the death of the complainant’s intestate operated a dissolution, and this event never occurred until December, 1825, and from 1821 to the period of Frederick Lindenberger's death, the defendant Hebb, who was himself one of the partners, was entrusted to wind up and settle the concern, at an annual salary. No administration existed on Lindenberger's estate until 1832, and it could not be doubted, but that the administrator of Lindenberger, when his rights accrued, had a perfect right to call upon the surviving partner for an account. The delay of the administrator for nearly five years, to file his bill, is not in our judgment such a delay as would enable the respondent to rely on the lapse of time, and to treat the claim as a stale claim; and therefore, not entitled to the countenance of a court of equity.

We are, therefore, of opinion, that the case should have been sent to the auditor; that an account should be taken of the co-partnership transactions.

From the above views, it will follow, that the decree of the Chancellor, dismissing the complainant’s bill, should be reversed, and that the cause should be remanded to the Chancellor for further proceedings.

DECREE REVERSED AND CAUSE REMANDED.