Adm&r v. Lewel-ling.F

• Decision Date: 10 March 1910
• Citation: 110 Va. 761,67 S.E. 362
• Court: Virginia Supreme Court
• Parties: LEWELLING'S ADM'R et al. v. LEWEL-LING.f

67 S.E. 362

110 Va. 761

LEWELLING'S ADM'R et al.

v.LEWEL-LING.f

Supreme Court of Appeals of Virginia.

March 10, 1910.

1. Partnership (§ 336^*)—Son for Settlement—Accuracy of Books of Account-Burden of Proof.

In a suit for the settlement of partnership affairs, the managing partner who kept the accounts had the burden of proving their accuracy.

[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. § 336.*]

2. Partnership (§ 315*)—Dissolution—Accounting.

Where a partnership kept no books except such as showed open accounts of outside people dealing with the firm, and as far as the transactions of the two partners with each other went there was no documentary evidence from which a balance and settlement could be arrived at with any degree of accuracy, and a court of equity could not afford relief without resort to speculation or conjecture, a bill by the surviving partner for a settlement of the partnership affairs should be dismissed.

[Ed. Note.—For other cases, see Partnership, Cent. Dig. § 731; Dec. Dig. § 315.*]

Appeal from Circuit Court, Elizabeth City County.

Bill by Thomas L. Lewelling against James Lewelling's administrator and others for a settlement of partnership affairs. From the decree, Henrietta E. Lewelling and others appeal. Reversed, bill dismissed, and cause remanded.

S. G. Cumming, S. J. Dudley, F. S. Collier and John W. Friend, for appellants.

L. C. Phillips and R. M. Lett, for appellee.

CARDWELL, J. James W. Lewelling and Thomas L. Lewelling were brothers, and in their early manhood, about the year 1873, they entered upon some sort of a partnership or joint business undertaking. No books ofaccount were then or afterwards opened showing their affairs inter sese, and none were intended or supposed to have been kept. Each of the brothers took from the assets held by them in common what he needed for his personal and family expenses or uses (both being married), and what remained was regarded by them as belonging to both in common. Each brother, however, owned real estate of his own which he had inherited or derived otherwise than from the joint business. The operations they engaged in were varied. In the early years thereof they were farming and conducting a sawmill; afterwards a livery and feed business in Hampton, Va., which was not, as it seems, a success, and they returned to farming, sawmilling, and gristmilling; their last venture being a livery stable and feed business in Newport News, commenced about 1904, and conducted until the fall of 1905, and during the latter part of the life of this business both of the brothers became quite dissipated, the result being a neglect of their business and its consequent failure. Finding that their business was no longer prosperous, and that disaster in the attempt to further prosecute it confronted them, the two brothers determined to dissolve the business relationship which had so long existed between them, and to this end they prepared and executed a deed partitioning certain real estate they owned as partners in Newport News, consisting of two adjoining lots, one of which was improved by the erection of a house thereon so that this lot was worth $1,000 more than the other. The improved lot was conveyed to James W. Lewelling, and the unimproved lot to Thos. L. Lewelling; and it is claimed on behalf of Thomas Lewelling in this litigation that it was then understood between the brothers that he (Thomas) was to have other property to the value of $1,000, "to make good this difference."

In September of the same year, the two brothers had prepared and signed another deed partitioning equally between them what was known as the "Franklin street property"; and later in the same month and year they went to an attorney's office, and, after going over the property which they owned jointly, piece by piece, had prepared a deed partitioning the same, making due allowance for the difference in values of the properties conveyed in the first deed, and agreed that Thomas Lewelling should have an extra lot on Chapel street, "to make good the difference." This deed was, however, not signed, because the wife of James Lewelling refused to relinquish her dower interest in the property sought to be partitioned.

In this condition of affairs, in the fall of 1905, creditors of the partnership brought actions and secured judgments against the firm, and shortly afterwards two chancery suits were instituted by these creditors to enforce the lien of their said judgments.

James Lewelling died January 20, 1906 and afterwards the said chancery suits were revived in the names of his widow and heirs, whereupon the two suits were consolidated, certain accounts taken, and a number of decrees entered; so that a large part of the assets of the firm of Lewelling Bros., both real and personal, was sold and the proceeds applied to the payment of some of the partnership debts.

After the dissolution of this partnership by the death of James Lewelling, and after the institution of the chancery suits mentioned, the Dabney Brokerage Company, which held a deed of trust on real estate belonging to Thomas Lewelling individually, to secure a debt of said firm, foreclosed its trust deed by a sale of the land it conveyed for $1,580, and the purchase money therefor was applied in part payment of the debt secured by the trust deed. Thereupon, the Dabney Brokerage Company proved in the aforesaid chancery causes their debt against the partnership for the balance due thereon, and received said balance out of the funds in those causes.

In these chancery proceedings, there was paid to the widow of James Lewelling $575.98 for her dower interest in the lands sold therein; but, as the wife of Thomas Lewelling was dead, no dower interest attached to his interest in the lands.

At this stage in the proceedings in said chancery causes, Thomas Lewelling filed his separate bill, asking for a winding up of the partnership and a settlement of the partnership affairs between him and his deceased brother, which suit was consolidated with the said chancery causes then pending, and on February 1, 1907, the three causes were referred to a master commissioner for an account and report upon the matters in...