Phillips v. Mantle

206 S.W. 660, 136 Ark. 338, 1918 Ark. LEXIS 336

• Court: Supreme Court of Arkansas
• Decided: October 28, 1918
• Status: Published

Opinion

Hart, J.,

(after stating the facts). To reverse the judgment, counsel for the defendant first invokes the general rule that one partner cannot sue the other at law in an action ex contractu but must proceed by .action of account in equity. There are however, certain well known exceptions to this general rule and the present case is one of them. Where the partnership has ended and all the debts have been paid, and the partnership .affairs otherwise adjusted and nothing remains to be done but to pay over an amount due from one partner to the other to be ascertained by a reckoning without any complications, an action at law lies in favor of one partner against the other. Thus in Jaques v. Hulit, 16 N. J. L. 38, it was held that a mutual, covenant to divide the proceeds of a certain crop, if it be a partnership, is so only for a special purpose, and terminates as .soon as the crop is sold; and that an action lies by one of the parties against the other, for any balance dne thereon to the plaintiff from the defendant, without resorting to the action of account rendered.

In the case of Fanning v. Chadwick, 3 Pick. (Mass.) 420, the court said:

“It is true, generally that a partner or tenant in common cannot sue his cotenant or copartner in an action in form ex contractu for a .share of the common property, or profits received. But if the joint interest is determined, or the partnership is dissolved, all accounts and liabilities being settled and discharged, and a balance remains due from one cotenant or copartner to another, it may be recovered in an action of assumpsit. It is said that an express promise is necessary, and such seems to be the English doctrine. But a contrary doctrine has been repeatedly laid down by this court.” (Citing cases). See also Shattuck v. Lawson, 10 Gray (Mass.) 405, and Dorwart v. Ball (Neb.), 8 A. & E. Ann. Cas. 766, and ease note.

The statement of the claim filed by Mantle in the justice court alleges that the defendant is justly indebted to him in the sum of $125 for which he asks judgment and costs. The transcript of the justice of the peace states that the plaintiff filed before him a cause of action against the defendant for $125 and the costs of the action for a debt on a contract. It is insisted by counsel for the defendant that this is not a sufficient compliance with section 4565 of Kirby’s Digest and for that reason the judgment should be reversed. The section is as follows:

‘ ‘ Ordinary actions shall be commenced by summons, but before the summons is issued the plaintiff shall file with the justice the account, or the written contract, or a short written statement of the facts on which the action is founded.”

"We do not think counsel are correct in this contention. It does not appear that any motion was made to compel the plaintiff to make his complaint more definite and certain. The defendant does not claim that he was surprised at the nature of the plaintiff’s cause of action or that he did not have sufficient opportunity to make his defense thereto. Both parties seem to recognize the nature of their differences and to direct their proof to the matters in issue between them. Therefore the defendant was not prejudiced and is not entitled to a reversal of the judgment on this ground. Hodges v. Bayley, 102 Ark. 200.

It follows that the judgment will be affirmed.