Newberry v. Gibson
| Decision Date | 17 November 1904 |
| Citation | 101 N.W. 428,125 Iowa 575 |
| Parties | W. F. NEWBERRY v. D. S. GIBSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--HON. W. D. EVANS, Judge.
SUIT at law to recover specific personal property. Trial to a jury and a verdict and judgment for the plaintiff. The defendant appeals.
Affirmed.
Healy Bros. & Kelleher, for appellant.
William T. Chantland and Kenyon & O'Connor, for appellee.
The parties to this action were partners in the livery business and on the 17th day of August, 1902, they executed a written memorandum of agreement as follows: "Newberry sells Gibson his one-half of livery at ten per cent. off on all stuff, after taking out four horses as follows: Tony and Goldust, Barney and Chub, at invoice price; possession to be given as soon as invoice completed." On the same day the livery stock was invoiced, and the sole possession thereof surrendered to the defendant, who thereafter continued the business until some time later, when he sold and transferred the same to a third party. Three of the horses which were to be taken from the stock by the plaintiff were retained by the appellant, and afterwards sold with the other stock, and this suit was brought to recover possession of said horses or their value. At the time of the sale of the plaintiff's interest in the business and at the time of the trial in the district court the general partnership business was unsettled, and on the latter date there was pending an action in equity for an accounting between them. It is contended that this action could not be maintained while the general partnership affairs were unsettled, because of the rule that no suit at law can be maintained by one partner against another until there has been a settlement or an accounting between them. This is undoubtedly the general rule as to partnership matters, but it is not the rule as to demands arising from transactions unconnected with the partnership, or which have, by the partners themselves, been isolated from the general partnership account. Vapereau v. Holcombe, 122 Iowa 406, 98 N.W. 279; 2 Lindley on Partnership, 563, 565. Hence it is that, if the horses in question became the individual property of the plaintiff by the terms of the agreement of August 17th, as carried out by the subsequent invoice and delivery of the property to the defendant, the plaintiff can certainly maintain this action. The court so instructed, and we think there was sufficient evidence to support the issue and warrant the instruction.
It is said there was no competent evidence as to the plaintiff's damages for the wrongful detention of the property; but we think otherwise....
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