Gilman v. Cunningham , 42 Me. 98 ( 1856 )

Goodenow, J.

This is an action of assumpsit for money had and received, to recover the value of a certain amount of gold dust, or the proceeds thereof.

The position has been taken by the defendant, that this action cannot be maintained, because, as he alleges, he was a partner of the plaintiff at the time the dust was received; that the partnership has not been dissolved, and that there has been no adjustment of the affairs of the company.

From the evidence exhibited to us, we are led to the conclusion that the defendant has money in his hands, which, upon the principles of equity and good conscience, he was in duty bound to pay over to the plaintiff, before this suit was commenced.

We are not satisfied that the parties stood in such a relation to each other by their contact, that the plaintiff cannot enforce his claim by an action at law against the defendant. There is a difference between partners and part owners. These terms are not unfrequently misapplied. Cessante ratione legis, cessat lex.

We cannot perceive any equitable claims on the part of the defendant against the plaintiff, which might not have been fairly adjusted in the trial of this action, by an account in set-off. If the defendant has acted as agent of the plaintiff in disposing of the gold dust, or in taking care of the proceeds or investing the funds arising from the same, he may be entitled to a reasonable compensation.

We are of opinion that this action can be maintained; that the evidence offered and excluded was inadmissible, and that a default must be entered. The plaintiff is entitled to recover one half of the money received for the gold belonging to said Cunningham and Gilman, and sold by said Cunningham and converted to his own use, with interest from the date of the writ; deducting a reasonable compensation for any services which the defendant may have rendered, in disposing of and taking care of the joint property. We are of opinion, that the precise amount of damages should be settled, upon the grounds stated above, by the Judge who may preside at Nisi Prius. Defendant defaulted.

Parties to be heard in damages.

Tenney, C. J., and Hathaway and May, J. J., concurred. Appleton, J., dissented.