Plumly's Appeal , 1 Monag. 177 ( 1889 )

Per Curiam,

This decree is affirmed upon the •opinion of the learned judge of the court below.

Decree affirmed and the appeal dismissed at the costs of the -appellant.

Feb. 14, 1889. Motion for re-argument.

The following reasons were assigned in support of the motion :

1. The appellee’s counsel admitted in his oral argument that ■the appellee had taken and sold the manufactured stock remaining in the possession of the firm at the time of dissolution and for this he has not accounted except at the cost of manufacture, whereas the real value of the stock to the firm was the selling value.

2. In the state of the record, it is left undecided whether any partnership relation whatever existed between the appellant and •appellee. This becomes of importance because, if no partnership •existed, certain charges, made both before and after the dissolution, which have been carried into the account approved below, are unsustainable except upon the theory of the existence of a partnership; and the court should declare the status of the parties in order that ■any rights which would belong to the appellant as a creditor may not be prejudiced.

3. There are several important questions of partnership law, •some of them of first impression in this commonwealth, properly .arising in this case, which, in the present state of the record, are left undecided, and which, if left so undecided, may cause the case to be misleading as an authority.

After reciting the importance of the case to the appellant, the petition further alleged that the court must have overlooked some of the evidence, especially the fact that the appellee admitted taking and using appellant’s capital, from whatever source it was derived and by whatever name it was called, thus keeping the appellant out •of business, etc., all of which was known to appellee.

Per Curiam, Feb. 25, 1889. — Re-argument refused.

A. B. W.,