Farrar v. Pearson , 59 Me. 561 ( 1871 )

Appleton, C. J.

This is an action of account. “Account render,” observes Gibson, J., in Geary v. Cunningham, 10 S. & R. 230, “ is at best but a clumsy remedy, and so greatly inferior to a bill in equity, that it is in England abandoned altogether.” It is, however, still retained in this State.

At the trial at nisi prius, the presiding justice rendered the interlocutory judgment, quod computet, to which exceptions were taken. The question presented is whether the plaintiff^, upon the evidence produced, were entitled to this judgment.

The plaintiffs and defendant -were partners. There has been no adjustment of the affairs of the partnership, and-no balance ascertained. The interests of the several partners inter sese were several. There is nothing showing or tending to show any interest on the part of these plaintiffs, which alone would entitle them to maintain a joint action against their copartner. There is no express promise proved, and nothing from which one can be implied.

In Whelan v. Watmough, 15 S. & R. 153, this form of action-was brought by one partner against two, and it was held not to be maintainable unless a joint liability was shown. “When the objection was first made, that there .could not be a verdict and judgment for the plaintiff quod computet, unless the jury found a joint liability of the defendants to render an account, I was impressed,” observes Duncan, J., “with an opinion that it was unanswerable. It seemed to me that it 'would be unsettling the first foundations, to say tli’at one man should bo answerable for another, when there was no express contract, and when, from the nature of the consideration, there could be none implied. I did not then believe it to be law, and so instructed the jury, that on the pica of never bailiffs or receivers of the plaintiffs, unless they found that this was a house of partnership, consisting of two parties, the plaintiffs one and the defendants the other, then verdict should be for the defendants.” This ruling was sustained and judgment entered on the verdict.

The same reasoning is still more applicable when there are two partners suing a third. The defendant may owe one and not the other, or one more than the other. The plaintiffs cannot have several judgments in accordance with the different amounts the defendant may owe them severally. They have no joint cause of action and therefore they cannot recover, though the same amount was due each. “ Neither,” observes Gould, J., in Beach v. Hotchkiss, 2 Conn. 425, “ can one of the three (when the partnership consists of that number) recover against either of the others singly, since the mutual claims of any two of them cannot be completely adjusted without deciding upon those of the third.” The only mode by which the affairs of a partnership, consisting of three or more, can be settled by suit is by bill, in equity, where all the partners are made parties to a suit, in which their respective rights can be adjusted.

In Portsmouth v. Donaldson, 32 Penn. 202, the precise question here presented arose. It was there held that one partner could not maintain this action against his two copartners jointly, without showing a joint liability on their part to account. “ The action of account render,” observes Strong, J., in delivering the opinion of the court, “ is founded upon contract, and the engagement between the partners is, that each partner shall account to every other for himself, and not for his copartner. It is a several liability, and no two partners are responsible to another jointly.”

In case of a tenancy in common, each tenant may bring his several action, but two cannot join against a third, for they have no joint interest. Sturton v. Richardson, 13 M. & W. 17.

■ Had tlie plaintiffs brought assumpsit, the affairs of the firm remaining unadjusted, and no balance agreed upon, and no express promise proved, the plaintiffs could not recover. In such case the law will not imply a promise. Exceptions sustained.

CuttiNG, KeNt, WaltoN, BaReows, and Tapley, JJ., concurred.