Near v. Lowe

Michigan Supreme Court

Near v. Lowe

13 N.W. 825, 49 Mich. 482, 1882 Mich. LEXIS 614

CourtMichigan Supreme Court

DecidedOctober 31, 1882

StatusPublished

Cited by6 cases

This text of 13 N.W. 825 (Near v. Lowe) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Near v. Lowe, 13 N.W. 825, 49 Mich. 482, 1882 Mich. LEXIS 614 (Mich. 1882).

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Opinion

Campbell, J.

Complainant filed his bill for an accounting concerning a partnership of which he, defendant Lowe,, and John Bayner were members, which was to expire bj limitation in May, 1871. .The business in fact ran on until July 31, 1871, when a new firm was formed which introduced defendant Smead, and left out complainant. He-claims that he has ’had no account of the business, and also' that he should share in the new business.

The testimony indicates that there has been no accounting, although it is claimed he received money in full of his proportion. Possibly he did, but he was entitled to know how matters stood, and there is testimony indicating that ho-[483]*483did not receive credit in full for what was due him. This i can only be cleared up by an account showing the whole state of affairs.

It was held by the court below that the right to an account was barred in six years, as decided in Jenny v. Perkins 17 Mich. 28. That case held that the legal analogy would properly apply in case there were no equities to the contrary* As the articles of partnership were under seal and contained; covenants the legal bar of six years could only arise in am action of assumpsit. Christy v. Farlin ante, p. 319. In | other actions it would require ten years. Moreover there were dealings within six years, in the shape of an alleged-showing of balances, which .would cut off the bar, had it. otherwise existed. ■ i

As the circuit court did not pass upon any other questíomi we shall not attempt to determine the merits beyond ordering an accounting. Until that is taken we do not think it. clear that defendant Smead should be discharged. It may be that the new firm has dealt in such a way as to involve it in the account. We have no means of knowing how this is,. and when the final decree is granted full justice can be. done to all parties.

The decree must be reversed with costs, and the cause? remanded for an accounting.

The other Justices concurred.

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Campbell, J.

Complainant filed his bill for an accounting concerning a partnership of which he, defendant Lowe,, and John Bayner were members, which was to expire bj limitation in May, 1871. .The business in fact ran on until July 31, 1871, when a new firm was formed which introduced defendant Smead, and left out complainant. He-claims that he has ’had no account of the business, and also' that he should share in the new business.

The testimony indicates that there has been no accounting, although it is claimed he received money in full of his proportion. Possibly he did, but he was entitled to know how matters stood, and there is testimony indicating that ho-[483]*483did not receive credit in full for what was due him. This i can only be cleared up by an account showing the whole state of affairs.

It was held by the court below that the right to an account was barred in six years, as decided in Jenny v. Perkins 17 Mich. 28. That case held that the legal analogy would properly apply in case there were no equities to the contrary* As the articles of partnership were under seal and contained; covenants the legal bar of six years could only arise in am action of assumpsit. Christy v. Farlin ante, p. 319. In | other actions it would require ten years. Moreover there were dealings within six years, in the shape of an alleged-showing of balances, which .would cut off the bar, had it. otherwise existed. ■ i

As the circuit court did not pass upon any other questíomi we shall not attempt to determine the merits beyond ordering an accounting. Until that is taken we do not think it. clear that defendant Smead should be discharged. It may be that the new firm has dealt in such a way as to involve it in the account. We have no means of knowing how this is,. and when the final decree is granted full justice can be. done to all parties.

The decree must be reversed with costs, and the cause? remanded for an accounting.

The other Justices concurred.

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Bluebook (online)

13 N.W. 825, 49 Mich. 482, 1882 Mich. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/near-v-lowe-mich-1882.

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