Leonard v. Leonard , 1 Watts & Serg. 342 ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

The settlement of accounts between these parties on the 28th of March 1831, would undoubtedly be a bar to the present action of account render, were it not that the defendant himself procured that agreement to be set aside on the ground of fraud in the plaintiff at the making of it. That fraud had the effect of preventing the plaintiff from recovering on the agreement: but it was the defendant who alleged it; and the necessary consequence of the defendant’s thus rescinding that agreement, was to restore the parties to their original situation. It would be unjust that the defendant, after succeeding in barring the plaintiff’s claim on the agreement, on the ground that it was null and void, should set it up now to prevent an inquiry into their mutual rights, thereby retaining in his hands the great bulk of the partnership property, without accounting for any portion of it. It is true, if the merits of the accounts had been inquired into and decided upon in the former action of assumpsit, they ought not again to be called into question in this suit: and they may have been inquired into, under our loose system of pleading, by the assent of the parties, though strictly irregular; but it would rather seem, from the charge of Judge Blythe, that the ground on which the plaintiff failed was fraud in the plaintiff in concealing a sum of $15, which he had received prior to the agreement: and we are not able to perceive, from the evidence before us, that the state of the accounts was gone into and determined. All that we can pronounce to have been done, was to rescind the agreement and declare it null and void. That being the case, the original rights of the parties revived, and justice would require that they should be settled.

Judgment reversed, and venire facias de novo awarded.