Majority
Justice Martin that there was no proof of contributory negligence.
As to the damages, we are all of opinion that they must be treated as damages recovered under the statute The Chief and should therefore be reduced to three thousand Justice.
dollars.
As to costs, as the plaintiff has succeeded on all points raised, except the amount of the damages, we think plaintiff should have his costs as well here as below.
Judgment of the Court
J. -- This appeal involves only point procedure
The question is whether a partner can sue his co-partner for an account in an action pro socio, without alleging and producing a full and regular account according to the practice followed in the Province of Quebec.
Article 1898 of the Civil Code says:
This article leaves a great deal of discretion with the court.
The Superior Court held that the production of such regular and complete account was not necessary, and that, especially under the latter part of article 1898, it was sufficient for the plaintiff to lay statements sufficient to open an inquiry into all the affairs and business of the partnership and liquidate the same. For that reason the court referred the whole case to a skilful accountant, to whose competency no exception HIGGIs or objection was taken by either of the parties. This accountant opened a full inquiry, looked into the books of the firm, examined the partners and their witnesses, GironardJ and finally. made a report which deals fully with the whole case.
No serious defect, in fact, no defect whatever is alleged against this report. No injustice is shown. The court adopted it, and entered judgment according to its conclusions.
In review, the action was dismissed, because no regular account had been offered by the plaintiff before returning his action. In appeal this judgment was reversed by the majority of the court who held that sufficient statements had been produced to do justice to all the parties, and, for that reason, reversed the judgment of the Court of Review and restored the judgment of the Superior Court This appeal involves only a question of procedure in an action where no wrong or injustice has been suffered by the party appealing.
The appeal is, therefore, dismissed with costs. Appeal dismissed with costs.