Rowley v. Rowley , 289 Pa. 171 ( 1927 )

Argued March 16, 1927. Plaintiff filed a bill in equity alleging the formation of a partnership between himself and defendant about May 1, 1924, the conduct of business by the partnership in Pittsburgh, Pa., and Youngstown, Ohio, and the dissolution of the firm on January 8, 1925, by plaintiff's withdrawal therefrom. The bill further alleges that, after the dissolution, defendant refused to account to plaintiff in respect to the partnership transactions, and converted the firm assets to his own use. Plaintiff therefore asked a decree of dissolution of the partnership, together with an injunction forbidding defendant to deal with the partnership property, the appointment of a receiver, and an accounting. Defendant filed an answer denying the material averments of the bill, particularly that a partnership had been formed, although he admitted there had been an agreement to form one.

The chancellor, CARPENTER, J., who first passed upon this case, filed an opinion in which he said it was clear no partnership had been formed; he ruled, however, that plaintiff was entitled to an accounting of the joint transactions carried on by the parties, and that the question of a receivership would be held in abeyance, pending such an account and its audit. An account was stated, an assessor appointed, his report filed, and exceptions taken by plaintiff. Thereafter Judge CARPENTER died. Since the chancellor's opinion had not stated findings of fact, conclusions of law, and decree nisi, it was suggested that the record was not in proper form; whereupon counsel agreed that the court should make formal findings of fact, conclusions of law and a decree nisi, on the evidence previously taken. From this point the case has proceeded as though it were de novo, and as if, as a matter of fact, no account had yet been filed.

The court below, in carrying out the agreement of counsel, concurred with the chancellor in finding that "the facts do not show a partnership," but "do show that, after the agreement to form a partnership [which defendant admitted], some business was done on . . . . . . joint account"; and therefore, the court concluded, plaintiff was entitled to an accounting. The decree was "that defendant file an account of the joint business in the City of Pittsburgh between May 1, 1924, and January 8, 1925, and of the joint business in the City of Youngstown between August 15, 1924, [the date from which plaintiff claimed to be a partner as to business in that city] and January 8, 1925." No disposition whatever was made of plaintiff's prayers for an injunction and appointment of a receiver. Plaintiff has appealed, complaining of (1) the refusal of the court below to find the existence of a partnership, and (2) that the decree was inadequate.

Insofar as this may be regarded as an appeal from a decree to account, we are of opinion that the appeal cannot be maintained. Aside from statutory provisions to the contrary, decrees for accounts are interlocutory (Offerle v. Reynolds L. Co., 170 Pa. 29, 32; Lauer v. Lauer Brewing Co., 180 Pa. 593,595) and not appealable. It is only by virtue of the Act of 1895, P. L. 243, as amended by Act of 1921, P. L. 60, that appeals may be taken from such decrees. The sole purpose of these acts was to enable a defendant to have his liability to account finally determined before he should be put to the trouble and expense of stating an account, and their application is to be confined to that purpose. In Lauer v. Lauer Brewing Co., supra, 597, an appeal somewhat similar to the present one, we said, "It [the Act of 1895] appears to make no provision for an appeal by the plaintiffs"; and in Davidson v. Davidson, 262 Pa. 520, 523, we stated, "The sole question before us under the Act [of 1895] is that of liability to account." See also Beatty v. Safe Deposit Co., 226 Pa. 430, 432; Murphy v. Murphy, 263 Pa. 196, 197. In the present case, not only is defendant's liability to account adjudged in favor of appellant, but the scope of the decree is even broader than his prayer. He asked an accounting of partnership transactions alone, while the decree orders an account of all joint business. Manifestly plaintiff has nothing to complain of as to the scope of the decree so far as it orders an account, and therefore he is not in a position to maintain the appeal on that ground. Any objections which he may have to the extent of the accounting, etc., may be raised by exceptions to the audit and to the decree nisi: Beatty v. Safe Deposit Co., supra; Murphy v. Murphy, supra; see also Wettengel v. Robinson, 288 Pa. 362, 371.

The question as to the failure of the court below to grant an injunction is not raised on this appeal, and the failure to appoint a receiver has been but slightly touched upon by counsel. It is evident that plaintiff's prime object is to have an accounting of what may be due him, and to recover that amount; we are therefore of opinion that, under the peculiar circumstances here existing, it is not necessary at this time for us to enter upon a consideration of questions which may arise by reason of the issue on the alleged partnership, — either as it affects the right to maintain the instant appeal (see Lauer v. Lauer Brewing Co., supra) or concerns the existence of a partnership itself. If it develops that the finding of no partnership, or any other prior finding, affects plaintiff's rights on the accounting, his exceptions thereto can be inquired into on a subsequent appeal. As was said before, an account has been stated, and if it is correct and satisfactory to plaintiff, nothing more need be done; on the other hand, if dissatisfied with it, he can in a proper way raise all questions which may be necessary to secure his rights, and points so made can be brought before us at a later time.

The present appeal is dismissed without prejudice to plaintiff's right to raise all desired issues on exceptions to the account, to the adjudication thereof, or to prior findings of the court below; costs to await the final order of that tribunal.