Vierling v. Leich

64 N.E. 230, 29 Ind. App. 174, 1902 Ind. App. LEXIS 119

• Court: Indiana Court of Appeals
• Decided: May 27, 1902
• Docket: No. 3,595
• Status: Published

Opinions

Roby, J.

The appellee executed a receipt as follows: “Evansville, Ind., November 1, 1890. $6,083.80. Received of Charles Leich, J. A. Lemcke, and Alexander Lemcke, $6,083.80. The sum is received by me in full satisfaction of all claims by me against said Charles Leich, J. A. Lemcke and Alexander Lemcke, or against either of said persons, growing out of the purchase by said J. A. Lemcke and Alexander Lemcke of the stock of goods and other assets of Leich, Yierling & Carlstedt, and out of the wholesale drug business carried on by said Lemcke, subsequent to such purchase, under the name of Lemcke & Co., and said sum is in full of all other claims and demands against said parties, or any of them. Signed in duplicate. Peter Yierling.”

Contemporaneously therewith, and as part of the same transaction, an instrument in terms as follows was executed to liim: “Evansville, Ind., Nov. 1, 1890. This is to certify that Peter Yielding is entitled to one-fourth of all accounts that are still unpaid, and may be collected hereafter, of Leich, Yielding & Oarlstedt and of Lemcke & Co., up to July 1, 1888, the latter amounting to $4,266.65, and the former to $3,207.52. Any error in calculation or omission in settlement to be corrected whenever discovered. Charles Leich. Lemcke & Co.”

Afterwards, in June, 1893, he brought an action, in which he averred that he was induced to sign said receipt by fraud, and in which he prayed a general accounting, and judgment for his -share. IJpon trial he recovered a judgment for $1,200 against appellant, which has been paid.

In the present suit he alleges that appellee has collected certain accounts; that he is entitled to one-fourth of such accounts; that he has demanded the same, but that appellee refuses to pay any part thereof. The issues foimed on this complaint present the question' as to whether the prior action constitutes an adjudication of the matters now set up. The trial court held that they were within the issues of that cause and, therefore, under the rule declared in Fischli v. Fischli, 1 Blackf. 360, 12 Am. Dec. 251, and many other eases, conclusively presumed to have been adjudicated therein. Appellant claims the right to show that the court did not adjudicate the claim now set up.

The transaction evidenced by the instruments heretofore set oxxt was successfully attacked by appellant as fraudulent. Being fraudulent, it was as though never made. The issues then required a -full adjustment of the mutual rights of the parties growing out of the business relation. A money judgment was rendered. The value of the uncollected accounts was involved. If a final disposition could not be made otherwise, the court had power to appoint a receiver to collect them. Childers v. Neely, 47 W. Va. 70, 34 S. E. 828, 49 L. R. A. 468, 81 Am. St. 777.

In determining the rights of partners as to one of many business transactions, it is necessary to know their rights as to all; for the partnership business is a continuous thing, and not a disjointed connection of separate affairs. Crossley v. Taylor, 83 Ind. 337; Page v. Thompson, 33 Ind. 137; Douthit v. Douthit, 133 Ind. 26.

Judgment affirmed.