Bonney v. Stoughton

• Decision Date: 11 November 1887
• Citation: 122 Ill. 536,13 N.E. 833
• Parties: BONNEY v. STOUGHTON.
• Court: Illinois Supreme Court

122 Ill. 536

13 N.E. 833

BONNEY

v.STOUGHTON.

Supreme Court of Illinois.

November 11, 1887.

Appeal from appellate court, First district.

Demurrer to a bill in equity seeking to take a case out of the statute of limitations on the ground of mistake. The bill was filed January 20, 1885, by an assignee, representing one of two partners, against the administratrix of the other partner, and alleged, in substance, that on May 21, 1879, the partnership was dissolved, and a discussion of partnership affairs held by the partners, and an ineffectual attempt made by them to settle the partnership accounts; that plaintiff's assignor, in good faith, believed that the attempted settlement was valid, and acted on his belief by accepting from deceased a paper which he supposed a balance of $1,230.06, due him from deceased, though the assignor had originally claimed $1,950; that thereupon deceased delivered to the assignor what the latter supposed to be an assignment of certain accounts, ‘in partial settlement of the amount due, which amount the assignor supposed to be $1,230.06; that the assignor was thus confirmed in his belief that the supposed settlement was valid, and that litigation had been prevented; that deceased died December 18, 1881, and his administratrix was appointed August 11, 1882, and that the assignor further acted on his belief by filing, August 21, 1882, a claim for $1,230.06 against the estate of deceased, which claim was, March 1, 1883, tried and disallowed by the probate court, and appealed to a circuit court, where, November 2, 1884, it was again tried, this time by a jury, and again disallowed, both disallowances being on the ground that the partnership affairs had not been settled, and that the claim ought to be litigated in a court of equity; that the assignor did not, until the second disallowance, know and become convinced of his mistakes; that the assignor made a mistake in so believing, and another in so acting on his belief and prosecuting his claim in a court of law; that deceased in his lifetime often admitted his said liability, and the administratrix, on the first trial, admitted in open court a balance of $130 by the partnership books in the assignor's favor, but repudiated the supposed settlement, and insisted on litigating the claim in chancery; that on the second trial she in like manner admitted a balance of $160 in the assignor's favor, and repudiated and insisted as before; that the judges of both courts, probate and circuit, said that, as a matter of right, plaintiff's assignor was entitled to some amount from the estate, but that such amount could not be determined before them; and that the partnership accounts had never been settled.

SHOPE, J.

This bill, filed by appellant, Bonney, assignee of Edward G. Bowzer, seeks an accounting in respect to the partnership affairs of the late firm of C. H. Crowell & Co., of which Charles H. Crowell and said Edward G. Bowzer were the copartners.

It is alleged in the bill that the copartnership theretofore existing between Crowell and Bowzer ‘was terminated and ended by the mutual acts, consent, and acquiescence of both parties,’ on the twenty-first day of May, 1879. It is also alleged that there was an attempt at accounting between the copartners, and that Bowzer in good faith believed there was a settlement of the partnership affairs, in which it was agreed there was due him from Crowell $1,230.06. There is no allegation in the bill that the copartnership existed for any purpose after that date, but on the contrary it is fairly inferable from the allegations of the bill that there was a final and complete dissolution of the copartnership. It is not material that we should now determine whether the balance due Bowzer was agreed upon or not; if it was, there being no extension of time of payment, it became immediately payable; and if not so agreed upon, immediately upon the dissolution of the firm either party might have brought an action against the other partner, and compelled the settlement and adjustment of their partnership affairs. Taking the charge in the bill as true, that no such settlement or adjustment was in fact made, Bowzer had the right, either by bill in chancery or by action of account, to proceed at once to adjust the partnership affairs between himself and Crowell. The fifth clause of section 2, c. 2, Rev. St., in force July 1, 1874, is: ‘The action of account may be sustained * * * by one or more copartner or copartners against the other copartner or copartners, to settle and adjust their copartnership accounts and dealings.’ It is manifest that in either event-that is, whether there was an adjustment of the account or not-the right of action in respect to this claim accrued upon dissolution of the copartnership, May 21, 1879. Upon the dissolution, all that remained to be done, as shown by the bill, was to adjust the account of the partners with each other: Whatever claim either had against the other was a money demand simply.

Section 15 of the limitation act (Starr & C. 1552) provides: ‘Actions on unwritten contracts, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.’ No limitation is specifically provided for the action of account, and the five-years limitation therefore applies. Quayle v. Guild, 91 Ill. 378.

This bill was filed January 20, 1885, more than five years after the cause of action accrued, and it is clear that the right of action at law was then barred; and it is, as said by this court in Hancock v. Harper, 86 Ill. 445, well settled that where courts of law and equity have concurrent jurisdiction, a claim barred at law will be barred in equity. Courts of equity, says Justice Story, (1 Eq. Jur. § 529,) govern themselves by the same limitation as to entertaining bills for account ‘as are prescribed by the statute of limitations in regard to suits in courts of common law in matters of account,’ and ‘in so doing they do not act, in cases of this sort, so much upon the ground of analogy to the statute of limitations as positively in obedience to such statute.’ And this rule obtains in bills for account by one partner against another, as in other cases for bills for account. Quayle v. Guild, supra, and authorities cited. In the cases cited, of Hancock v. Harper and the later case of Quayle v....