Ludington v. Taft , 10 Barb. 447 ( 1851 )

By the Court, Gridley, P. J.

By the code of procedure the distinction between actions at law and suits in equity, and the existing forms of all such actions and suits, are abolished. (Code § 69.) A demurrer lies to a complaint when it does not state facts sufficient to constitute a cause of action, (Subd. 6 of § 144.) When any of the matters mentioned in section 144 do not appear on the face of the complaint, the objection may be taken in the answer. (Sec. 147.) But this particular objection mentioned in the 6th subdivision of section 144, is not waived, by omitting to take it in the answer, or by demurrer. (Sec. 148. 3 How. Pr. Rep. 280.)

I. In this state courts of law and equity were supposed to have concurrent jurisdiction in matters of account between partners. (3 John. Ch. Rep. 360. 18 John. 132. 2 Caines 1. 9 John. 470.) And the revised statutes expressly recognize the action of account between partners, and prescribe the mode of proceeding • therein, however it may have been doubted since. (See sec. 49 to 53 of art. 4, tit. 6, chap. VI. part 3, of 2 R. S. p. 382.) The complaint in this case contains the elements of a declaration in an action of account, as given by 0bitty. But whether' the right formerly existed at law, or in equity, the same right » exists by express enactment under the code. In equity the authorities are equally clear. Collyer, in his treatise, says, (p. 162,) “ the account which a court of equity decrees between' partners is usually consequent upon a dissolution.” And on page 163 it is laid down that a bill will lie for an account, before dissolution. (See also Story's Eq. Jur. sec. 671, and note.) Judge Story, in section 672, explicitly says, that such a bill lies when a dissolution has taken place. The action, then, was properly brought. The complaint in this case sets forth a partnership, a dissolution, the existence of unsettled accounts, and a balance in favor of the plaintiff; and demands an accounting, and judgment for the balance. This shows a cause of action. It is not a question here whether the complaint is perfect, arid embraces all the matters necessary for a final account. It is only a question whether there are facts enough set forth to show a cause of action. (See the Code, sections 144 and 148.) As to any objections to the form, or any defects in the structure of the bill, they can not' be examined here, on a general objection that the complaint does not set forth facts enough to constitute a cause of action.

II. The parties having, by their stipulation, made Mr. Marsh a referee to take the evidence and report thereon, as though he had been appointed by order of court, no objection can now be taken to the report, on the ground that no preliminary decree that the parties account had been made. This stipulation is evidence that the whole matter in issue, embracing the statement of the accounts, was referred.

III. Did the referee err 7

(1.) I think he was right in refusing to dismiss the complaint, for the reasons before stated.

(2.) The main question on the merits arises on the allegation in the answer, that the plaintiff received large sums from the persons to whom the stone was delivered, and as the defendant believed, between $1000 and $2000, besides large and small sums from the defendant. Now this is answered in the reply by denying the receipt of any other or different sums from persons to whom stone was delivered, &c., than as mentioned in the amended complaint. And the defendant denies the receipt1" of any other or greater sums than are mentioned in the amended complaint. Now if no sums are mentioned in the amended complaint, then none are admitted. But the plaintiff does mention in his amended complaint, various sums paid out, that, (except the $114,21, which he expressly says was paid out of his private funds,) are here admitted to have been received of persons to whom stone was delivered. This does not amount to the $166,39, the footing of the sums proved to have been paid out. But suppose this entire sum is admitted to have been received of the money of the partnership, then nothing will be due the plaintiff, on account of money paid out by him. There is still a larger sum than is reported by the referee, shown to be due from the defendant, arising on the balance in his hands over what he paid out. He appears to have received from the firm, over and above what he paid out, $937,53, the half of which exceeds the sum reported to be due.

We therefore do not see any error against the defendant, in this report. To justify us in setting a report aside, we must clearly see that the referee has done injustice to the defendant, who objects to it. It is not for every error which he makes that a report will be set aside; but it must be a clear and decisive error, by which the defendant has been injured.

IV. As to costs. Judge Willard, in Graves v. Blanchard, (4 How. Pr. Rep. 300,) has decided, in a well reasoned opinion, that when the whole cause is referred, the referee has the right, and it is his duty, to decide upon the question of costs. Costs are in the discretion of the court; (Code, § 306;) and being now in the discretion of the referee, we would not supervise his decision unless upon some manifest error. We do not see any such error. The defendant denied the partnership, and refused to ■ come to any settlement with the plaintiff, or do any thing about it. 1 say this because such is substantially the ground taken by the defendant in folio 159. On the whole, we see no good reason to disturb the finding of the referee. We think justice has been done, and a new trial is denied.

Judgment affirmed, and new trial denied.