McDowell v. North

• Decision Date: 15 December 1899
• Docket Number: 2,412
• Citation: 55 N.E. 789,24 Ind.App. 435
• Parties: MCDOWELL v. NORTH, ADMINISTRATOR
• Court: Indiana Appellate Court

55 N.E. 789

24 Ind.App. 435

MCDOWELL v. NORTH, ADMINISTRATOR

No. 2,412

Court of Appeals of Indiana

December 15, 1899

Rehearing denied April 3, 1900.

From the Wells Circuit Court.

Affirmed.

A. N Martin and W. H. Eichhorn, for appellant.

J. S Dailey, A. Simmons and F. C. Dailey, for appellee.

OPINION

WILEY, C. J.

This case was transferred from the Supreme Court.

Appellee was plaintiff below, and his complaint was in three paragraphs. In the first paragraph of complaint it is averred that appellant is indebted to the estate of Jacob North, deceased, in the sum of $ 803.67 on an account stated between appellant and said decedent, on the 2nd of April, 1895, upon which statement a balance was found to be due from appellant of said sum, which amount he agreed to pay. It is further averred that said sum is due and unpaid.

In the second paragraph it is averred that on February 1, 1887, the decedent and appellant entered into a partnership for the purpose of operating a sawmill, and carrying on the business incident thereto; that the said decedent paid in as capital stock $ 5,000; that on April 2, 1895, the decedent and appellant had a full and final accounting and settlement of their partnership business up to that date; that in said settlement it was found and agreed that appellant was indebted to decedent in the sum of $ 803.67; that the debts of said firm have all been paid; that upon said settlement being made the business of said partnership was closed up, and was by mutual consent dissolved; that demand had been made upon appellant to pay the sum so found due, but the same was refused; that said sum is due and remains unpaid.

In the amended third paragraph of complaint the same facts are alleged as to the partnership between appellant and decedent as are averred in the second paragraph. It is then averred that the profits and losses were to be borne and shared equally; that said partnership and business continued until April 2, 1895, when by mutual consent, the partnership was dissolved; that the decedent agreed with appellant to take a deed for appellant's undivided one-half of the real estate owned by the partnership, together with the mill and machinery, at the valuation of $ 1,000, all of which, except $ 254, was to be applied to the liquidation of a note of $ 500 held by decedent against appellant for the unpaid purchase money for said real estate; that it was also agreed that decedent should take the lumber and logs on hand, at the valuation of $ 563.18; that said real estate was conveyed to decedent, and that said logs and lumber were transferred to him, in pursuance to said agreement; that on April 2, 1895, there was a full and complete settlement between them, in which it was agreed that the total amount due the decedent was $ 2,535.68; that appellant was entitled to a credit thereon in the sum of $ 914.83, being the amount overdrawn by decedent on the partnership account; that appellant was entitled to other credits (specifying them) in the total sum of $ 1,732.01, which left a balance in favor of and due decedent of $ 803.67. It is also charged that when said settlement was made, it was agreed that the notes and accounts of the partnership remaining unpaid should be sold, assigned, and turned over to decedent; that he should collect so much of them as were collectible, and apply the proceeds thereof, first, to any outstanding indebtedness, and that one-half of the residue should be applied as a credit on said sum of $ 803.67 so agreed to be due decedent; that in pursuance to said agreement all of the notes and accounts of said partnership were sold, assigned, and turned over to decedent, who, during his life, made diligent efforts to collect the same, but neither the decedent nor appellee was ever able to collect but $ -- thereon, and that the residue thereof has either been paid to appellant or is upon parties who were worthless and insolvent, etc. It is then averred that said sum of $ 803.67 is due, remains unpaid, and that demand for payment has been made. Appellant demurred to each of the paragraphs of complaint for want of sufficient facts, which was overruled, and he has assigned such ruling as error. While other questions are presented by the record, we will first dispose of the ones thus presented.

As to the first paragraph, appellant argues that there is no allegation that any matter of indebtedness ever existed between him and decedent, which was settled between them, and therefore no consideration is shown for any promise on appellant's part to pay any sum of money. This objection is not tenable. While the paragraph might have been more artistically drawn, it contains all necessary elements to make it good against a demurrer. In Bouslog v. Garrett, 39 Ind. 338, the following complaint was held good: "Nathan Garrett * * * complains of Levi Bouslog, * * * and says that on the 1st day of January, 1870, the defendant was indebted to the plaintiff in the sum of $ 1,007.84, for money found due from the said defendant to the plaintiff upon an account then stated between them; which said sum, together with the legal interest thereon, remains unpaid, for which he demands judgment." The court said: "We are inclined to hold that the first paragraph of the complaint is sufficient under the code, although it is not exactly according to the approved forms in the works on pleading. It may be advisable, in such a paragraph, to allege an express promise to pay the amount ascertained to be due, and this is according to the usual forms. But we think this is impliedly included in the allegations of the paragraph in question. The law implies a promise to pay the balance found to be due." In the case we are now considering the paragraph alleged an express promise to pay, and that the amount was due. The paragraph is in harmony with the form of a complaint upon an account stated, as laid down and approved in 3 Works' Prac. p. 15. If, as said in Bouslog v. Garrett, supra, we can imply a promise to pay, we certainly can imply that there was an indebtedness existing in favor of decedent against appellant for the very suggestion of an account stated implies an indebtedness. The allegation that an account was stated between the parties, and upon such statement it was found that a certain balance was due from the defendant to the plaintiff, is a sufficient charge of a breach of contract. 1 Ency. Pl. & Pr. p. 89, note 1.

Neither is it necessary to file a bill of particulars with the complaint upon an account stated. Salem Gravel Road Co. v. Pennington, 62 Ind. 175. "An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions and promising payment." 1 Ency. Pl. & Pr. p. 87; Zacarino v. Pallotti, 49 Conn. 36. Many other authorities might be cited.

The next objection urged to this paragraph is that there is no averment of the death of the creditor. Such an averment is not necessary. Kelley v. Love, 35 Ind. 106.

Appellant says the second paragraph of complaint is bad because it does not allege that the partnership affairs with third persons had been settled, its choses in action had been collected, and its partnership property had been disposed of; that no demand is alleged, and that a surviving partner is not liable to an action by the personal representative of the deceased partner until a demand is made for a settlement, and is refused, and that such demand must be averred. If it was the theory of this paragraph that the partnership that had existed between appellee's decedent and appellant still existed, had not been dissolved, and no settlement had been made thereof, these objections would be well taken. But this is not the theory of the second paragraph. It proceeds upon the theory that the partnership had been dissolved, a settlement of its affairs made, its debts all paid, and upon such settlement between the parties, it was found that appellant was indebted to the decedent in the sum of $ 803.67, which he agreed to pay. These facts are all specifically averred, and it is also averred that a demand was made. See Anderson v. Ackerman, 88 Ind. 481.

In the case of Douthit v. Douthit, 133 Ind. 26, 32 N.E. 715, it is said: "It is the law that one partner can not sue another to recover profits or to recover his share of partnership assets where the partnership is unsettled, although he may sue for an accounting and for the recovery of whatever may be found due upon a settlement of the partnership affairs. But this rule does not apply to all cases growing out of partnership contracts. Where there is an agreement adjusting partnership affairs, and that agreement awards one partner a specific sum, or creates a specific duty in his favor, he may maintain an action upon a breach of the duty or promise." Citing Snyder v. Baber, 74 Ind. 47; Warring v. Hill, 89 Ind. 497; Lawrence v. Clark, 39 Ky. 257, 9 Dana 257; Foster v. Allanson, 2 T. R. 479; Wright v. Hunter, 1 East 20; Neil v. Greenleaf, 26 Ohio St. 567; Wells v. Carpenter, 65 Ill. 447.

In the case from which we last quoted, where a special finding of facts was made, it was said: "These facts require the conclusion that there was an agreement of dissolution wherein were contained specific promises and stipulations creating specific duties, and there was no necessity for an accounting embracing all partnership matters, since only specific matters were in controversy. * * * Where one partner, upon dissolution, unconditionally agrees to pay a designated sum or a specified debt he is absolutely bound, and no demand is necessary to fix his liability." Citing Anderson v. Ackerman, 88 Ind. 481. Under the averments of the second paragraph of complaint, it is shown that a partnership...