Rice v. Maddox — 16 Daly (N.Y.) 156

Majority

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Helen A. Rice, as Administratrix &c. of Clement T. Rice, Appellant, against Alice Maddox, Respondent.

(Decided April 7th, 1890.)

Headnote

In an action by an administratrix to establish a copartnership between her intestate and defendant, and for an accounting, it appeared that such a partnership had existed, but that prior to April 26th, 1874, the intestate had received from the partnership business an amount equal to his advances ; it did not appear that after that date he took any part in the the management or control of the business, or received any money on account of it, but defendant conducted it alone, and, from 1877, in partnership with another; between May 3d, 1874, and July 4th, 1879, the intestate borrowed small sums from defendant or said firm, which were not entered in the books of the business, except as a memorandum until repaid; on October 1st, 1874, as an insurance broker, he procured insurance on the ’ property of the business in the name of defendant, and October 1st, 187o, procured a renewal thereof, and October 1st, 1879, procured a policy in the name of the new firm, and afterwards rendered a bill to them therefor, and received and receipted payment. Held, that this was sufficient to sustain a finding that the partnership between him and defendant was dissolved on or before October 1st, 1874.

Appeal from a judgment of this court entered on the report of a referee.

The facts are stated in the opinion.

Thomas O. Feclesine, for appellant.

Joseph Fettreteh, for respondent.

This action was brought to establish a co-partnership between Clement T. Rice, the plaintiff’s intestate, and the defendant Alice Maddox, and for an accounting of the copartnership transaction^. The referee found that in November, 1869, Rice became a partner of the defendant and one Browning in conducting the business of a Russian bath and boarding establishment; that in the same month Browning withdrew, and Rice and the defendant continued the business thereafter; but that prior to April 26th, 1874, Rice had

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drawn out of or received from the business, including certain charges for board made in the ledger against him, an amount equal to his advances, and that it does not appear that after the last named date he took any part in the management of the business, or exercised any control over-it, or drew out or received any money on account of any share or interest in it; that from April 26th, 1874, to the year 1877, defendant continued the business in the original place in Fourth Street, and in the latter year removed to Lafayette Place, to premises fitted up. by her, and since October 1st, 1877, has conducted the business there in conjunction with one Ryan, under the firm name of Capes & Ryan.

The referee further finds that, between May 3rd, 1874, and July 4th, 1879, Rice borrowed small sums from defendant or the last named firm, which sums were not entered in the books of the business, except that a memorandum of the loan was made in the daily cash book and carried therein from day to day till paid ; that on October 1st, 1874, Rice, in his capacity of insurance broker (in which business he was and had been for many years engaged), procured a policy of insurance upon the property of the bathing establishment in the name of the defendant as owner, and on October 1st, 1875, procured a renewal thereof; and on October 1st, 1879, procured a policy in the names of Capes and Ryan as owners, and on November 18th, 1879, rendered a bill to them for such insurance and received and receipted payment.

Upon these facts the referee found that the copartnership between Rice and the defendant was dissolved as early as October 1st, 1874, and that the cause of action for an accounting was barred by the statute of limitations, the action not having been commenced until the year 1886. I do not think that I could have come to any other conclusion upon the evidence in the case than that reached by the referee, with respect to the termination of all business relations between the defendant and the deceased, in the year 1874 or prior thereto. The statement of the facts as found by the referee is sufficient reason for his .decision. The acts of the deceased

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after the last named date were wholly inconsistent with the claims now made by his. administratrix (but never made'by him as.far as can be ascertained), that he continued to be a copartner of the defendant. He did not die until January, 1884, and it is a perfectly fair inference from the facts that if he had had any interest in the business he would have asserted it, or at least there would be some indisputable evidence of it, during the ten years prior to his death; and that if there had been any right to an accounting with the defendant he would have enforced it during the same period. The facts disclosed leave no room to doubt that not only was the co-partnership dissolved, but that a final settlement was had between the parties. The onus was of course upon the defendant to show a dissolution, but it was satisfactorily shown. The finding by the referee that from October, 1871, the deceased gradually withdrew from the active management of the business, and left it in the hands of his copartner, and of' Ryan their manager, is not inconsistent with the other findings; there is direct evidence, given by Ryan, of a settlement with deceased in full in behalf of defendant, on April 26th, 1874, and that the subsequent monetary transactions with deceased were in borrowing and repaying small sums of money. The accounts in evidence fully bear out this testimony ; in no other way can the entries of small sums, almost always tallying in amount, within a few days of each other as to date of entry, be explained; it is hardly credible that these were advances to the copartnership and drafts against his account as, copartner. • The appellant claims that taking out insurance in the name of the defendant Mrs. Capes, and afterwards as Capes & Ryan, was not significant, because it appears that he did not begin in 18-74 to insure in her name, but always, from 1869 ; but there is no evidence that prior to 1874 he took out policies in her name; Ryan swears only that when he went there in 1871 deceased was attending to her insurance; how the policies were taken out does not appear. The ledger account was closed April 26th, 1874; but appellant urges that there is no proof that this was done with

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deceased’s knowledge and consent; to this it may be answered that it is hardly probable that, if deceased remained a partner, he would or could remain in ignorance on this point.

The statute of limitations as set up in • the answer was pleaded to the whole cause of action as alleged in the complaint and does not refer, as appellant argues, to the “ money counts.” The complaint alleges but one cause of action, and that is for an accounting of the copartnership. It is, however, objected that the settlement of April 26th, 1874, closed only the account for borrowed money, and was not a settlement of the copartnership accounts. It appears, however, from the transactions at and preceding that date, that there was nothing left unsettled at and after that date, and the settlement was final between the parties as to all dealings between them.

I think the judgment should be affirmed, with costs.

Larremore, Ch. J., and Bischoff, J., concurred.

Judgment affirmed, with costs.