Stanwood v. Mitchell , 59 Me. 121 ( 1871 )

Appleton, C. J.

The plaintiff claims to be a partner of the firm of Nathan O. Mitchell & Co., a firm composed of the parties to this suit and others, and engaged in the ice business; that his interest in the same is one-sixteenth; that dividends have been made of the profits, and that the dividend belonging to him is in the hands of the defendant.

The parties agreed to submit the matters in controversy to two very intelligent referees, whose report determining the questions submitted was offered and accepted.

It has been argued by the learned counsel for the defendant, with great ingenuity as well as ability, that this submission involves the settlement of a partnership account; that partnership matters can only be settled by bill in equity; that the plaintiff’s claim is not “ the subject of a personal action,” and, therefore, not a matter which can bo referred under R. S. c. 108, § 1.

But the claim in this case is not by one partner against the other members of the firm. It does not involve the liquidation or adjustment of partnership affairs. The other members are no parties to this controversy. All the plaintiff seeks is to recover his proportional share of the profits which have been earned, “apportioned, and paid over ” to all the members of the company, except himself, on the ground that he is a member of the same, and that the defendant wrongfully retains his share.

The claim is for funds of the plaintiff in the defendant’s hands, and for which an action for money had and received would lie. It is a question between the plaintiff and defendant to whom a dividend belongs as between them. It is a dispute whether the plaintiff or defendant own a certain sixteenth which both claim. The dividends belonging to the company have long ago boon made by the defendant, and if the plaintiff is, as between them, a partner, he has a right to recover.

The defendant, by assenting to the reference, has agreed that the questions in issue may be settled by referees. The claim is not against the company, hut against him. The authorities, therefore, in reference to the law of partnership, must be regarded as inapplicable.

It is next objected that the referees had “no authority, under said submission, to determine what interests and right the said Stanwood had or has in or unto the copartnership property of the said firm of N. O. Mitchell & Co.” As against the firm the award of the referees is not binding, because they are not parties to the reference. If in the award matters not referred are embraced, it is not to that extent binding upon the-parties, for it is familiar law that an award may be good in part and bad in part.

The objection that the award undertakes “ to determine the title to real estate ”-cannot avail. It does not directly appear in their award that they did so. Incidentally they may have had the real property under consideration. But no conclusions to which they may have arrived can affect the members of the firm, who did not participate in the reference, nor, indeed, can they this defendant, if they related to matters not the proper subject of a submission, or if being the proper subject, they were not submitted.

An' award may be good in part and bad in part, and if separable the good will be affirmed. Orcutt v. Battle, 41 Maine, 83; Day v. Hooper, 51 Maine, 178. In this case if the objections which we have considered were to be deemed valid, there is no difficulty in making the separation. It is obvious the referees found the defendant had money belonging to the plaintiff in his hands, not as a member of the firm of N. O. Mitchell & Co., but as its “ agent and business manager.” , For the amount so found he is entitled to judgment. Exceptions overruled.

CuttiNc, KeNT, Barrows, DaNeorth, and Tapley, JJ., concurred.