Dowling v. Clarke

Supreme Court of Rhode Island

Dowling v. Clarke

13 R.I. 134, 1880 R.I. LEXIS 60

DecidedOctober 16, 1880

StatusPublished

This text of 13 R.I. 134 (Dowling v. Clarke) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dowling v. Clarke, 13 R.I. 134, 1880 R.I. LEXIS 60 (R.I. 1880).

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Opinion

Per Curiam.

The special count in the declaration is in assumpsit for the balance of a co-partnership account. It shows that the account involves divers matters. It alleges that the partnership has been dissolved, but it does not show that the account has ever been stated and a balance struck, nor even that nothing remains for the defendant partner to do but to settle the account. The English rule is that assumpsit does not lie for a general balance until after the account has been stated between the parties and the balance struck. The American courts, except in Massachusetts, hold to the same, or a stricter rule. Collyer on Partnership, § 281, and note. There is good reason why the English rule, with its recognized exceptions, should be adhered to. A jury is not fitted for the adjudication of an unliquidated and controverted partnership account, involving numerous transactions. But the special count of the declaration does not meet the requirements even of the Massachusetts rule. For anything that appears there may be property belonging to the copartnership which has never been reduced to money, or debts due to or from the firm which are still unpaid, so that it may be that a final balance is not even ascertainable. Williams v. Henshaw, 11 Pick. 79. Demurrer sustained.

Note. — See Dowling v. Clarke, infra.

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Per Curiam.

The special count in the declaration is in assumpsit for the balance of a co-partnership account. It shows that the account involves divers matters. It alleges that the partnership has been dissolved, but it does not show that the account has ever been stated and a balance struck, nor even that nothing remains for the defendant partner to do but to settle the account. The English rule is that assumpsit does not lie for a general balance until after the account has been stated between the parties and the balance struck. The American courts, except in Massachusetts, hold to the same, or a stricter rule. Collyer on Partnership, § 281, and note. There is good reason why the English rule, with its recognized exceptions, should be adhered to. A jury is not fitted for the adjudication of an unliquidated and controverted partnership account, involving numerous transactions. But the special count of the declaration does not meet the requirements even of the Massachusetts rule. For anything that appears there may be property belonging to the copartnership which has never been reduced to money, or debts due to or from the firm which are still unpaid, so that it may be that a final balance is not even ascertainable. Williams v. Henshaw, 11 Pick. 79. Demurrer sustained.

Note. — See Dowling v. Clarke, infra.

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Bluebook (online)

13 R.I. 134, 1880 R.I. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowling-v-clarke-ri-1880.