Foster v. Ives

53 Vt. 458

• Court: Supreme Court of Vermont
• Decided: January 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

Taft, J.

This is an action of account between partners, in favor of many plaintiffs against one defendant. At common law, such an action cannot be maintained, where more than two partners are concerned. Wiswell v. Wilkins, 4 Vt. 137. The statute of 1852, sec. 13, chap. 41, Gen. Sts., provides'that the action of account may be brought “ by one or more co-partner or co-partners, to settle and adjust their co-partnership accounts and dealings, making all said co-partners, parties to said action either as plaintiffs or defendants,” and the subsequent section confers upon the County Court all the powers'of a Court of Chancery in the proceedings brought under said sec. 13. We think this action well brought under that statute; indeed it could not otherwise be maintained for the reason already given. Some of the plaintiffs are married women, at least are described as such, incapable of suing at common law, but properly joined, we think, under the statute. It does not in terms say that married women may be made parties, but it requires all the co-partners to be so, and as the rights of a feme covert partner are protected in equity, and equity powers are given to the court where the action is brought, we think the statute applies as well to the question who may be parties, as to the proceedings subsequent to the process.

By consent of the parties referees were appointed by the County Court, to hear the cause, and decide it according to law; and they proceeded and took an account of the defendant’s transactions as agent of the “ Empire Grange,” the name of the firm composed of the plaintiffs and defendant, and under which name the business was done, and made report of such transactions alone. The report shows that the Grange is under an indebtedness for which the defendant is, apparently, equally liable with the plaintiffs, that it had goods on hand, and accounts due it, which belong to the parties in common, in fact there exist all the concomitant circumstances of an unsettled partnership, and any judgment rendered in the case as it now stands, will not do justice between the parties. The County Court possesses all the authority of a Court of Chancery in the matter, and it is evident that the affairs of the firm should be closed in an equitable manner, the property sold, the debts due it collected, the obligations paid, and if necessary such assessments made upon the solvent members as will meet all its liabilities, either to third parties or among themselves, in other words to completely settle the affairs of the firm as a court of equity would do. That the equity courts can thus proceed is beyond question, 1 Story Eq. Jur. s. 504, and by the statute referred to, the County Court can proceed in the same manner.

We think that instead of rendering judgment upon the report, the judgment of the County Court should be reversed, and the cause remanded, that the case may be disposed of in accordance with the views herein expressed.

The counsel for the defendant make the point that the co-partnership may still be transacting business, and desire and contemplate its continuance, that the case shows but two parties, the plaintiffs, as one member of the firm, and the defendant as the other, and that the case does not purport to seek any benefit from the statute above mentioned, and cites the case of Lapoint v. Scott, 36 Vt. 633. That case was correctly decided, standing as it did upon a motion to dismiss; but in the case at bar the facts are found by the referees, that the parties to this action, the several plaintiffs and defendant, were partners in the Grange, that the enterprise was not a success, and assign the causes of its failure. We think it a fair inference from such findings that the business of the firm has ceased, and that all that now remains to be done is to settle the affairs of an insolvent partnership, in the manner above indicated, and to enable’ the court so to do, the judgment of the County Court is reversed, and case remanded.