Bennett v. Bennett

Fogler, J.

The plaintiff as surviving partner brings this suit against the administrator of his deceased partner to recover $507.90, or one-half of the balance found due him on settlement of his account as surviving partner.

The writ is dated December 23, 1896.

The plea is the general issue with brief statement that the claim sued is barred by R. S., c. 87, § 12; and further that, inasmuch as the plaintiff did not represent the partnership estate insolvent, he is precluded from recovering of the individual estate of the deceased partner any amount expended by him in settlement of the partnership affairs in excess of the partnership assets in his hands.

The defendant further contends in argument that if the plaintiff has any remedy it is in an action of debt and not in assumpsit.

The action was begun in the Superior Court for Cumberland county .and at the request of the parties was reported by the justice of that court to the full court.

The facts so far as material are substantially as follows: The plaintiff is the surviving partner of the late firm of H. P. and E. Gr. Bennett, which was composed of the plaintiff and Henry P. Bennett, who died January 30, 1889.

On the first Tuesday of March, 1889, the plaintiff gave bond and was authorized to settle the partnership estate as provided by R. S., c. 69.

The defendant was duly appointed administrator of the estate of the deceased partner on the 8th day of February, 1889, and published notice of such appointment on February 8th, 15th and 22d, 1889.

The plaintiff, as such surviving partner, filed his first and final account in the probate court on the third Tuesday of March, 1896, which was finally settled on appeal by the Supreme Court of Probate on the 23d day of October, 1896, a balance of $1016.81 being found due to the plaintiff for money paid by him in settlement of the partnership business over and above the amount received by him from the partnership assets.

I. A surviving partner who pays more than his share of the partnership liabilities may rfecover from the estate of his deceased partner his due proportion thereof. Bird v. Bird, 77 Maine, 499. And recovery thereof may be by an action of assumpsit. Bond v. Hays, 12 Mass. 34; Willy v. Phinney, 15 Mass. 120.

II. Revised Statutes, c. 87, § 12, prior to the amendment of 1895, provided that no action shall be maintained against an executor or administrator on claims against the estate unless commenced within two years and six months after notice has been given of his appointment. To this provision the statute makes certain exceptions, none of which, however, are applicable to the case at bar. '

The defendant gave notice of his appointment in February, 1889. This suit was commenced December 23, 1896, more than seven years after such notice.

The statute above referred to bars the plaintiff’s suit unless his claim as surviving partner is excepted from the operation of the statute.

The cases cited by the plaintiff’s counsel sustain the position that a suit by the surviving partner against a debtor of the firm is not subject to the limitation provided in suits against executors or administrators, but do not sustain the position that such statute is not applicable to a suit by a surviving partner against an executor or administrator. Revised Statutes, c. 69, § 2, makes the duty of a surviving partner, who has given the bond provided by law, to close up the affairs of the partnership within one year after the date of his bond unless a longer time is allowed by the judge of probate. The plaintiff delayed for more than seven years from the date of his bond to close up the affairs of the partnership, and his suit for reimbursement was not commenced against the administrator of his deceased partner within the time limited by the statute for bringing actions against administrators and executors. TTis suit is not excepted, either by statute or by adjudged cases from the operation of such statute, and is therefore barred. Whittier v. Woodward, 71 Maine, 161; Fowler v. True, 76 Maine, 46.

Judgment for defendant.