Appeal of Christy , 92 Pa. 157 ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

This was a partnership bill. The plaintiffs and defendants are respectively members of an unincorporated association called- the “Concord Savings Bank.” The prayers were for an account and for contribution. H. P. Conway, one of the defendants, by his answer denied his liability to account, for the reason that he was not a member of the co-partnership. The liability of the other defendants to account and contribution was not denied. The denial of the partnership by Conway, raised a preliminary question as to him which, under the authorities, it was necessary to settle before the equities between the parties could be gone into: Collyer v. Collyer, 2 Wright 257. The master accordingly proceeded to hear the case, and upon testimony which is entirely satisfactory, found the fact that H. P. Conway was a member of the partnership ; that he was liable to contribution, and recmomending a decree for an account. Upon exceptions filed to his report, the court below dismissed the bill.

This was error. The subject-matter of the bill was clearly within the jurisdiction of equity. It comes within the express terms of the Act of 16th June 1836, conferring equity powers upon the courts. See also Collyer v. Collyer, supra; Tutton v. Addams, 9 Wright 67 ; Hedge & Horn’s Appeal, 13 P. F. Smith 273. The point strongly pressed on behalf of Conway, that the plaintiffs had an adequate remedy at law, is not well taken. The questions to be settled, were not adapted to an ordinary jury trial. The plaintiffs allege, that they had become security for, and had been compelled to pay large sums on account of the partnership. To establish the liability, and ascertain the amount the defendant Conway would be entitled to contribute, necessarily involved the adjustment of complicated accounts. The flexible machinery of a court of equity, is peculiarly adapted to such proceedings, and has very generally driven out of use the old remedy by action of account render.

Objection was made, that the report was incomplete; that the reference to the master was general, and included the whole case. It is true the reference was general. This was a mistake, and probably an oversight. The proper practice would have been to have made a special reference to the master, to report upon the preliminary question of the defendant Conway’s liability as a partner. As the master has done just what he ought to have done under a proper reference, we may well regard the order as amended. The objection is purely technical, and the irregularity did no harm. Mere technicalities are not favored in equity, which regards substance rather than form.

The court below gave no reasons for dismissing the bill, and we are unable to see any.

The decree is reversed at the costs of the appellees; the bill is re-instated ; the decree reported by the master is approved ; and it is ordered that the record be remitted to the court below for the purpose of taking an account, and for such further proceedings as may be necessary.