Chase v. Garvin , 19 Me. 211 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

While a partnership exists, or remains unsettled, no action at law can be maintained by one partner against another, except an action of account, or of assumpsit ou a promise to account. Wilby & al. v. Phinney, 15 Mass. R. 116. This doctrine is well established, and is conceded by the counsel for the plaintiffs. But where the partnership has been dissolved, and its concerns adjusted, a suit at law may be maintained for a balance found due from the one to the other. So where in such case, the accounts have been settled, and one has by mistake paid to another more than was his due, it has been held, that it may be recovered back in an action of assumpsit. Bond v. Hays, 12 Mass. R. 34.

In the case before ns, there was no settlement of the partnership accounts, but. the defendant purchased out the interest and claim'of the plaintiffs for a gross sum. There is reason to believe from the evidence, that in the exhibits and statements made by the defendant, which led to and occasioned this arrangement, he was guilty of fraud. If the plaintiffs have sustained an injury from this cause, they may repudiate the contract and open the account between the parties. They are not bound by a contract, based in fraud and deception, on the part of the defendant. If an account had been stated, in which there was a manifest error in the figures, or in the principles upon which it was adjusted, the amount really due to the plaintiffs might be recovered in assumpsit, leaving the dissolution and settlement otherwise unaffected. But here was no adjustment of accounts. What might he realized from the partnership funds, was a matter oí conjecture. A deduction was made for debts due, supposed to be bad or doubtful, and an allowance was made for responsibilities thrown upon the defendant. The whole affair is infected with fraud, and the remedy is in opening it for further investigation. The extent of the plaintiffs’ injury can then be ascertained, and such relief afforded them, as the justice of the case requires. As it was presented in evidence, the opinion of the Court is, that the nonsuit was properly ordered.

Exceptions overruled.