Gunn v. Brinkley Car Works & Mfg. Co.

• Decision Date: 14 February 1895
• Docket Number: 348.
• Citation: 66 F. 382
• Parties: GUNN v. BRINKLEY CAR WORKS & MANUF'G CO.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F. 382

GUNN v. BRINKLEY CAR WORKS & MANUF'G CO.

No. 348.

United States Court of Appeals, Eighth Circuit.

February 14, 1895

George Gillham filed brief for appellant.

M. L Stephenson, Jacob Trieber, John J. Hornor, and E. C. Hornor filed brief for appellee.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This is an appeal from a decree dismissing the amended bill of the appellant, John Gunn, for an accounting between himself, as surviving partner of the firm of Gunn & Black, and the Brinkley Car Works & Manufacturing Company, a corporation. According to the allegations of this bill, the appellant and William Black composed the partnership of Gunn & Black from 1881 until 1889, when Black died. During this time Black was the business manager of this firm, and the appellant, who could read but little and from lack of education could not understand bookkeeping, intrusted to him the entire management of the business of the partnership. During all this time Black was also the president and general manager of the Brinkley Car Works & Manufacturing Company, a corporation of the state of Arkansas. He had a much larger pecuniary interest in this corporation than in the partnership, while the appellant, Gunn, had a much larger interest in the partnership than in the corporation. From February 14, 1882 to November, 1888, the partnership and corporation were engaged in business as merchants, and were continually dealing with each other. These dealings were evidenced by a mutual running account, which has never been settled. A copy of the items of this account, as it appears on the account books of Gunn & Black, disclose more than 400 items charged and more than 100 items credited, by that firm to the corporation, and shows a balance of more than $20,000 due from the corporation to the partnership. But the corporation denies any indebtedness, and maintains that the partnership is indebted to it. Black, as manager of both the partnership and the corporation, superintended the bookkeeping of both concerns, and perpetrated gross frauds on the partnership by withholding from the account books of the firm proper debits to the corporation, and by placing thereon false and improper credits in favor of the corporation, amounting in the aggregate to many thousand dollars, so that the corporation is justly indebted to the partnership in an amount far in excess of the balance shown by the books of the latter. Many of the items that should have been, but were not, charged to this corporation on these books are set forth in the bill. The corporation, after repeated demands, refuses to permit the appellant to examine its account books, or to furnish him with any statement of the account between it and the partnership. The prayer of the bill is for a true account between the appellant, as surviving member of this partnership, and the corporation, for the recovery of the balance that shall be found due, and for other relief. To this bill a demurrer was interposed. The court below sustained to the demurrer, and dismissed the bill.

In support of this decree counsel for appellee relies upon the legislative declaration of the judiciary act of 1789, that 'suits in equity shall not be sustained in either of the courts of the United States in any case where...