Honore v. Colmesnil, & Vice Versa

• Decision Date: 15 June 1829
• Citation: Honore v. Colmesnil, & Vice Versa, 24 Ky. 506 (Ky. Ct. App. 1829)
• Parties: <I>Honore</I> <I>vs.</I> <I>Colmesnil, and vice versa.</I>
• Court: Kentucky Court of Appeals

Page 506

24 Ky. 506

Honore vs. Colmesnil, and vice versa.

Court of Appeals of Kentucky.

June 15, 1829.

Cross writs of error to the Jefferson Circuit; J. P. OLDHAM, Judge.

Judge UNDERWOOD delivered the opinion of the Court.

THESE are cases relating to a partnership formed for the purpose of conducting a grocery and commission business, in the town (now city) of Louisville. At its formation the partners had great confidence in the honesty of each other, Colmesnil being the husband of Honore's daughter. At the period of filing the original bill, confidence had been supplanted by suspicion and mutual jealousy, and in the progress of the cause, a spirit of crimination and recrimination, whether well founded or not, is manifested, rarely equalled and perhaps never surpassed. Frauds of the blackest die in relation to the accounts of Colmesnil individually, and to the manner in which Colmesnil kept the accounts of the firm, are attributed to him by Honore, and in return Colmesnil charges Honore with bringing forward claims, and swearing to them, destitute of truth and justice. Unfortunately, the parties scarcely agree in any one important fact, and what is yet more unfortunate, their transactions are so enveloped in darkness, that it is nearly impossible for the court to elucidate them and to administer justice.

It is clear from the bills and answers, that in April, 1817, the parties entered into partnership under the style of John A. Honore and Colmesnil, for the purpose of doing business as grocery and commission merchants in Louisville, for an indefinite period. The terms of the partnership were not reduced to writing, and in relation to these the partners do not agree in any one point. Honore contends, it was mutually agreed that each partner was to contribute to the firm the whole of his monied capital, that profit and loss were to be apportioned according to the capital advanced, and that he was to have a reasonable rent for his store and warehouse, in which the business of the firm was to be transacted. Colmesnil states the terms of the partnership to be, that each partner was to contribute the same sum for the purpose of forming a capital, and that no specific sum was ever agreed on, that the profit and loss of the concern were to be equally shared and born, and that no rent was to be paid for the use of the store and warehouse, because the superior services of Colmesnil were estimated to be equivalent to the value of their rent. No deposition of any witness is filed, proving the terms of partnership, and in the absence of such proof, we are left to apply the rules of law, without any clear and satisfactory evidence which would enable us to determine whether the terms of the partnership have been truly stated, either by the complainant or defendant.

Had there been a written contract providing for the existence of the partnership, and defining the rights of the partners respectively, no difficulty could have arisen. In the absence of such a contract, and in the absence of all proof showing an express agreement by parol, "the partnership as regards its regulation, is governed by the contract implied by law, from the relation of the parties. Without an express agreement, the concurrent opinion of all the writers on the civil law, is, that the loss must be equally borne, and the profits must be equally divided." See Gow on partnership, 10. The same author proceeds to state a case in which Lord Ellenborough directed an issue to ascertain the interest of a son, whose father told him on his coming of age, he should have a share in the father's business; the son having acted as a partner between five and six years, leaving it to the jury to say, under the particular circumstances of the case, what was a fair proportion, and the jury only gave one fourth part of the profits. But Lord Eldon was dissatisfied with the result of this issue, alleging that, "as no distinct proportion was ascertained by force of any express contract between the parties, they must, of necessity, have been equal partners, if partners in any thing." There is nothing in this cause to induce a belief that a gratuity was intended, and we perceive no principle upon which to restrict either partner from claiming half the profits. But before these profits are divided, the capital of each partner and the debts and expenses of the firm must be deducted.

Before we enter into the consideration of the accounts, there are several questions of law made in the progress of the cause, in the circuit court, which will be disposed of. Some of them are so intimately connected with the accounts, that they will be embraced in the consideration of the accounts. And,

1st. The complainant Honore filed his original bill in February, 1820, praying for a dissolution of the partnership, and a settlement of its affairs. On the 23d February, 1820, a decree was rendered by consent, dissolving the partnership and appointing a commissioner to divide the goods and wares belonging to the firm, between the partners. In May, 1820, the complainant filed an amendment to hisbill; in August, 1821, he filed another, and in April, 1823, he filed another; to the filing of which last the defendant excepted. We are of opinion that the court correctly overruled the exceptions of the defendant. Filing amendments depend on the discretion of the court, and unless that discretion has been abused to the injury of the party complaining, this court will not control it. The matter brought forward in the amendment excepted to, is important, some of it had not been before exhibited, the complainant swore he had obtained part of it since his last preceeding amendment; the procrastination likely to result, was calculated to damage the complainant as much, if not more than the defendant, and in the settlement of extensive mercantile transactions, the business of years, it is not to be presumed that the parties can immediately lay their fingers on all important papers which may elucidate complicated accounts, and bitter controversies which grow out of them. Under these considerations, we cannot say that the court erred in permitting the amendment of April, 1823, to be filed.

2d. On the 26th of February, 1820, the court appointed commissioners "to examine and state the accounts, claims and demands of complainant and defendant, in relation to the copartnership and individually, and to report." By the order appointing commissioners, the parties respectively were to have access to the books and papers of the firm, either party was to be allowed to make explanations in regard to them, and to adduce evidence, written and oral, before the commissioners. The parties were directed to produce on oath, all books and papers relating to the firm, and to lay them before the commissioners for inspection. The commissioners were authorized to examine the parties on oath, and to administer oaths to them.

On the 20th of May, 1820, the commissioners made their report to court, in which they state, among other things, that they had, after hearing witnesses, gone into an investigation of the accounts between Honore and Colmesnil, previous to the copartnership, and they proceed to state how those accounts stand in the ledger or book of Honore; and they say, from the books and papers exhibited, relating thereto, they cannot discover any material error. They proceed to state what appears on the book, to-wit: the execution of a note by Honore to Colmesnel, for $2252, payable 1st of June 1816, and the giving of a check by Honore in favor of Colmesnil, for $557 55, which was paid, they say, as per Honore's bank book, on the 18th December, 1815, and which, with the said note, balanced the account. They next speak of an account commencing November 14, 1815, entered in Honore's ledger, exhibiting a balance in favor of Colmesnil, for $283 49, which sum, with the amount of the note and interest, are brought into an account exhibited by Colmesnil against Honore, upon the settlement of which, on the 12th April, 1817, a balance is left in favor of Colmesnil, amounting to $1287 55, which, with interest up to the 26th January, 1820, making an aggregate of $1491 35, is credited to Colmesnil, and debited to Honore, on the books of the firm.

The commissioners then notice the firm transactions and say, that they have no means of ascertaining the stock of the parties, except from a stock memorandum book produced by Colmesnil and denied by Honore, from which it appears that Honore contributed, as stock, $6875 88, and Colmesnil $5037 59. They report a balance in favor of the firm, of $26,386 15; their examinations extending down to the 26th of January, 1820. From the condition of the books and in consequence of there being no stock, merchandize and other proper accounts opened and continued in the ledger of the firm, the commissioners say it is impossible to render a correct mercantile report. They present several accounts as the result of their labors.

In March, 1824, the complainant, with leave of the court, filed various exceptions to the report of the commissioners; and upon filing his exceptions, the cause came on for final hearing, and was heard at the same term, during which the exceptions were filed, but no decree was rendered until the ensuing term, when the court quashed a part of the report and affirmed the balance, with an addition for store and warehouse rent, omitted by the commissioners. The defendant, Colmesnil objected to the complainant's filing exceptions to the report of the commissioners, and being overruled, filed an exception to the opinion of the court. The ground of objection relied on by Colmesnil, is, that the exceptions came too late, and that in case they should be sustained, he would suffer irreparable injury from the death of one clerk and removal of another, who had testified before the commissioners.

We are not apprised of any law which puts the report of commissioners beyond the revision of the...