Welch v. Miller

Opinion by

Mr. Justice Thompson,

Three questions are raised by the assignments of error in this case. First, whether there was a joint liability on the part of the appellants, for which an action in assumpsit would lie. Second, whether one of the appellants not having received one half of the profits, but only a small sum described as commissions, was liable. Third, whether the action was premature by reason of one of the appellants having received in payment a mortgage which had not matured.

The appellants entered into an agreement with the appellees by which the former agreed to get an option to buy a certain farm, and the latter to procure a purchaser for it, the profits of the transaction to be divided between them, viz : one half to appellants and one half to appellees. The option was obtained, the purchaser procured, the transaction consummated and profits to the amount of $5,700 realized. The appellees in this action sued for one half of these profits. The verdict established the contract and the amount of profits derived from it. Appellants contended that the transaction was one of partnership and that the proper remedy was by bill in equity for an accounting and not by an action of assumpsit. The contract was a joint one and for a joint single transaction. It was closed and the exact amount of the profits was ascertained. The reason for the settlement of a partnership account through the medium of a bill in equity does not, therefore, exist and it is manifest that as an accounting is unnecessary, the transaction being a single one, an action of assumpsit will lie.

. In the case of Brubaker v. Robinson, 3 P. & W. 295, a case not dissimilar to the present one, the court below held that an action of assumpsit would lie and Mr. Justice Kennedy, in delivering the opinion, said :

“ For admitting that a technical partnership existed, of the correctness of which I very much doubt, there was but a single item, to be settled, the partnership, if such it may be called, being at an end. The whole scope of the agreement contemplated only the purchase of a single item of property, and the sale of it again and an equal division of the gain thereby made between them. It cannot be pretended that there is any necessity for the intervention of auditors to state and settle and account when the whole matter consists merely of the purchase of a single tract of land, and the sale of it again; and the question to be answered is how much, if anything, has been gained by the purchase and resale, after deducting the expenses attending it ? This can be ascertained with as much facility and certainty by a jury as by auditors, and the verdict of the jury at once closes and puts an end to all further controversy. Where the transaction is of such a nature as to render the calling in of auditors altogether unnecessary the action of account render may be very well avoided; for the prosecution of such an action is not only attended with more than double the costs and expenses but more than double the delay of assumpsit.”

Following the ruling of this and succeeding cases, Mr. Justice McCollum, in the case of Kutz v. Dreibelbis, 126 Pa. 335, says :

“ For firm moneys or assets received by a partner in his lifetime the ordinary rule is that his copartner cannot maintain assumpsit against him or his estate, but that he must resort to a bill for an account, or an action of account render. But to this rule there is an exception, and it is well settled that where there is a partnership in a single and finished transaction, one partner may maintain an action of assumpsit against the other : Brubaker v. Robinson, 3 P. & W. 295 ; Galbreath v. Moore, 2 Watts, 86; Wright v. Cumpsty, 41 Pa. 102; Finlay v. Stewart, 56 Pa. 183; Meason v. Kaine, 63 Pa. 335. In such case the accounts of the partners are adjusted and the plaintiff recovers his share of the proceeds of the transaction.

That the amount claimed in this case is the proceeds of the Lebanon Bridge contract is undisputed, and that Dreibelbis was a partner with Kutz in that contract is established by the verdict of the jury. But it is a case of partnership in a single transaction, which was closed in November, 1872. After that nothing remained to be done but to collect what was unpaid upon the contract.”

Appellants further contended that as Tintsman, one of the appellants, received but $200, described as commissions, from his associates, appellants were not entitled to recover against him. The evidence shows a single joint transaction in which there was a joint liability on the part of appellants to pay to appellees one half of the profits realized. The legal obligation to pay cannot be avoided successfully by one of the appellants by reason of the fact that he has received only a small part of the profits, by whatever name they may be designated by them, or by any arrangement which they may have chosen to make as to division between them. The joint liability under the contract entitled the appellees to recover against both appellants and this notwithstanding one of them may have received from the other less than his full share of the profits realized.

Appellants also contended that one of the appellants having received a mortgage for the balance of the purchase money and the same not being due, this action was premature and appellees were not entitled to recover. The affidavit' of defense denies the contract and the case was tried upon the issue whether the contract averred had been made and having gone to trial upon that issue and that issue only, it is too late to claim that the action was premature.

In the case of Benjamin v. Zell, 100 Pa. 33, Mr. Justice Mercur says :

“ It is further objected that the suit was prematurely brought, inasmuch as thé plaintiff in error took promissory notes for the consideration money, and they were not paid, when the suit was commenced. When asked to settle after he sold, and before suit was brought, he made no such objection. Neither then or on the first trial of the case does it appear that his refusal was put on the ground that he had not actually received all the money. The whole defense appears to have been a denial of the agreement alleged by the defendants in error, and now found by the jury. His receipt at the foot of the deed which he had executed admitted the receipt of the consideration money. He took the promissory notes as money. They were put in bank and all paid at maturity. He made no offer to turn over any of the notes, nor any request for defendants in error to wait until they were all paid.”

The assignments of error are not sustained and the judgment is affirmed.