majority">Caton, C. J.

This is a bill filed for an account between partners. It shows that at the time of the dissolution of the copartnership, the partners agreed between themselves for a settlement of the concern, whereby the defendant was to pay the complainant, in goods and accounts belonging to the concern, three thousand and two hundred dollars, and was to take the assets of the concern and to pay all the copartnership debts. The bill further alleges, that the defendant had failed and refused to perform this agreement of settlement, and that the defendant had collected a large amount of the debts due the firm, and that the complainant had been compelled to pay nine hundred and fifty dollars of the debts due by the firm, and asks for an account as if no agreement for a settlement had been made between the partners.

The only question in the case is, whether, under the circumstances here detailed, the complainant had a right to repudiate and abandon the agreement for a settlement, and ask for an account according to his rights as they originally existed as a member of the firm. If these statements are true, we think the defendant had, by his non-compliance with the agreement and refusal to perform it, substantially abandoned it, and the complainant had the right to treat it as if it had never been made. To get rid of the perplexities of settling the affairs of the firm, and avoid his liability to pay any of the debts of the concern, the complainant may well have been induced to consent to take less than his interest was really worth, and when he was disappointed in this expectation, when this consideration for the agreement had actually failed, when, instead of getting the consideration actually agreed upon, he was compelled to pay the debts as if the agreement had never been made, he might well consider himself as justly remitted to his original rights, and insist upon the whole to which he was entitled as partner. We think the court erred in sustaining the demurrer'to the bill.

The decree is reversed, and the suit remanded.

Decree reversed.

Citation profile

How this case has been treated — in progress