Richardson v. Gregory

• Decision Date: 15 November 1888
• Citation: 18 N.E. 777,126 Ill. 166
• Parties: RICHARDSON v. GREGORY.
• Court: Illinois Supreme Court

126 Ill. 166

18 N.E. 777

RICHARDSON

v.GREGORY.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, Second district.

Bill for an accounting, brought by Lionel W. Richardson against William H. Gregory. Complainant appeals. Rev. St. Ill. c. 83, § 15, provides that actions on unwritten contracts, express or implied, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.Marshall & Taggart

, for appellant.

William Lathrop, for appellee.

SHOPE, J.

This was a bill filed by appellant against appellee for an accounting between them as partners. On hearing, the circuit court dismissed the bill. On appeal to the appellate court, the decree of the circuit court was affirmed, and this further appeal is prosecuted therefrom. The partnership, under the firm name of Richardson & Gregory, was entered into June 23, 1870, for the manufacture and sale of plows, to be manufactured under certain devices for which Richardson had applied for a patent, and for the sale to others of license to manufacture thereunder. The patent was not then issued; but, in contemplation of its issue, the partnership was formed, commencing the date above mentioned, and to continue for the life of the patent, unless sooner dissolved by mutual consent. Gregory was to furnish capital, not to exceed $10,000, as the same should be required, and was to be repaid, with interest at 10 per cent. Each party was to devote himself to the business of the firm and in promoting its interests, and were to share the expenses equally; the profits, Richardson nine-sixteenths, and Gregory seven-sixteenths. Books were to be kept, and settlements had between partners, on the 1st days of June and November of each year. The stipulation in respect of the patent was that Richardson ‘shall not deprive or permit Gregory to be deprived of his full share, or seven-sixteenths, of said patent-right; but the same shall at all times be had and used to their mutual benefit and advantage during the continuance of said copartnership.’ The bill alleges that divers sums of money belonging to the firm came to the hand of Gregory, for which he fails and refuses to account, etc., and seeks an accounting and settlement of the partnership affairs. The answer, after admitting the partnership, sets up that the firm ceased doing business in manufacturing and selling plows in January, 1873; that they then licensed one Thompson to manufacture under said patent, the license to determine when the licensee ceased to manufacture thereunder; that Thompson entirely ceased in 1876, and that no business of any kind has been done or prosecuted by the firm since said date, except the collection of outstanding accounts; and avers that, long prior to June, 1877, the firm had entirely ceased to do business, without any intention to renew or further prosecute the same; avers that, in the spring of 1877, a full settlement was had of all partnership matters; and on review thereof, in May, 1878, a final and complete settlement of all matters pertaining to the partnership or its business was had, the entire assets of the firm divided between the copartners, and the partnership dissolved. The statute of limitations is set up and relied upon as a bar to the relief sought by the bill.

The questions presented are mainly of fact as to the alleged settlement and dissolution of the firm. Appellant denies that there ever was a settlement of the partnership affairs, or that the copartnership was ever terminated by mutual consent, but subsisted until a few months prior to the filing of his bill by the terms of the contract of copartnership; that is, until the expiration of the patent mentioned. The testimony offered upon the issue was that of appellant and appellee, corroborated to a greater or less degree by memoranda and documentary evidence. There is no controversy over the facts that the firm did a considerable business from the time of its organization to January, 1873, when it ceased to manufacture, and licensed Thompson; or that from that time until Thompson quit manufacturing under the license, in 1875 or 1876, the firm did no business except to sell its stock on hand, collect in its outstanding indebtedness, and collect royalty from Thompson; or that, since Thompson ceased manufacturing under said license, the firm have been engaged in no way in carrying on the business contemplated by the articles of copartnership, save only the attempt to collect a balance of outstanding indebtedness owing to the firm for products previously sold. It is also conceded that there was an attempt to settle the partnership affairs on and prior to the 15th day of May, 1878, which on that day resulted, as testified to by appellant, in a division between the parties of the assets of the firm. He testifies that on that day ‘we divided whatever assets there was found in the company. They were principally in notes,-a portion of which I took, and a portion went to him. There was a list of them all,-a list of what each took. The books were present. There was some old plows returned by agents. I took the plows. He took the letter-press. I took the plow-press. There was a lease of college land. That was divided or arranged previously. I don't think of anything more.’ Nor is it now contended that there were other assets of the firm than those divided. He also testifies that they were 10 days-perhaps twice that-in looking over the partnership affairs at that time, and says: ‘There was what purported to be a balance struck; that was what we were attempting to do. If there had been no errors, it would have been a settlement up to date.’ When the lists testified to are produced, it is found they have the following heading: ‘Statement of Division R. & G. Assets on Settlement, May 15, 1878, and Settlement of Account to Date.’ Then first follows statement, viz.:

+-----------------------------------------------------------------------------+
                ¦“Cr.                                                                         ¦
                +-----------------------------------------------------------------------------¦
                ¦By whole amt. of assets in notes and bills, - - - - - - - - - - - ¦          ¦
                ¦-                                                                 ¦          ¦

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