Lang v. Oppenheim

• Decision Date: 29 May 1884
• Docket Number: 10,384
• Citation: 96 Ind. 47
• Parties: Lang v. Oppenheim
• Court: Indiana Supreme Court

96 Ind. 47

Lang v. Oppenheim

No. 10,384

Supreme Court of Indiana

May 29, 1884

From the Cass Circuit Court.

D Turpie, M. Winfield and Q. A. Myers, for appellant.

S. T McConnell and T. J. Tuley, for appellee.

Best C. Hammand, J., did not participate in the decision of this cause.

OPINION

Best, C.

The parties to this action had been partners, and after the dissolution of the firm the appellee brought this suit to recover a balance alleged to be due him from the partnership affairs.

A demurrer was overruled to the first, second and third paragraphs of the complaint; issues were formed, a trial had and a judgment rendered for $ 2,918.24. A motion to strike out the judgment and allow the finding to remain as a balance due until a final accounting was overruled and a receiver was appointed to close the affairs of the firm.

These rulings are assigned as error.

The third paragraph of the complaint avers "that the plaintiff and defendant were partners in business until May 1st, 1878; that during the existence of the partnership the defendant drew out of the concern the following amounts which he has never accounted for, and for which the plaintiff is entitled to recover off of the defendant, viz.: 1878, March. To lot of clothing taken from the firm to buy the Twelfth street property of O. R. Shroyer, $ 2,500. August, 1876. The value of two houses and lots in Dykeman's third addition to Logansport, conveyed by plaintiff to defendant, $ 2,500. August, 1876. To the home property of defendant, conveyed to him by the plaintiff, the consideration of which was put in at $ 2,500, making the total amount of real estate taken by the defendant out of the firm for his own use, and not in any way settled or accounted for to the plaintiff, the sum of $ 7,500, for which the plaintiff asks judgment against the defendant; that said sum is due and remains unpaid," etc.

This paragraph is clearly insufficient. It fails to aver, either that the claims of the firm have been collected and its debts paid, or that none exist. It fails to aver that the claims, if any, are worthless, or that some disposition has been made of them. In the absence of all these averments, the paragraph was insufficient, as has often been decided by this court. Page v. Thompson, 33 Ind. 137; Cobble v. Tomlinson, 50 Ind. 550; Crossley v. Taylor, 83 Ind. 337; Meredith v. Ewing, 85 Ind. 410.

The first paragraph of the complaint also omits to aver that the claims of the firm have been collected or otherwise adjusted, and that its debts have been paid, or that none exist, and for the want of these averments this paragraph was also insufficient.

The second paragraph of the complaint was unlike the others. It averred the existence of such partnership from the 1st day of March, 1867, until the 1st day of May, 1878; that during said time said firm accumulated $ 10,000 worth of real estate, and that the stock of goods and outstanding claims at the time of dissolution amounted to $ 25,000; that "in the dissolution they agreed to and did select Solomon Fisher to adjust all matters of a personal character, and settle all their matters except the real estate; that said Fisher accepted such trust and took charge of the books and accounts, examined the same, and, leaving out the real estate, there was found due the plaintiff from the defendant the sum of $ 5,000, which the defendant agreed to pay the plaintiff; that the defendant took the real estate owned by the firm, valued at $ 5,000, none of which he has accounted for to the plaintiff, and that there is due the plaintiff by reason thereof the sum of $ 10,000, for which he demands judgment."

The averment in this paragraph, that the defendant took real estate of the firm, valued at $ 5,000, adds nothing to it, as it does not appear that the affairs of the firm had been finally adjusted. If...