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60 Mont. 36

Mares v. Mares

Montana Supreme Court

Decided June 27, 1921

Montana Supreme Court · decided 1921-06-27

II. Poornum, Judge. Action by Joseph Mares against Emma Mares, as executrix of the last will and testament of Frank Mares, deceased, and another. Held: “An action at law lies by one partner against the executor of a deceased copartner to recover firm assets.” In Hawkins v. Capron, 17 R. I. 679, 24 Atl. 466, it was held: “Trover lies by a surviving partner to recover possession of the firm assets against the representatives of the deceased partners.” (See, also, 1 Woerner on…

Relies on Forrester v. Boston & Montana Consolidated Copper & Silver Mining Co. · Merchants' National Bank v. Greenhood · In re Estate of Murphy

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1921-06-27

How this case has been cited

Cited by 22 later decisions — most recently June 1975

22 state decisions

80192119301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Motion for Rehearing.

MR. JUSTICE GALEN

¶2delivered the opinion of the court.

¶3*55[4]*54On motion filed for a rehearing, it is earnestly urged and argued by counsel for the plaintiff that the complaint states a cause of action under the allegations of paragraph 3 thereof on the theory of a resulting trust, and the decisions of this *55court in the cases of Eisenberg v. Goldsmith, 42 Mont. 563, 113 Pac. 1127, and Huffine v. Lincoln, 52 Mont. 585, 116 Pac. 820, are cited and relied upon. This contention is without merit, as the plaintiff predicates his cause of action upon his individual rights, rather than those of the partnership. However, this is the first time that this point has been presented, urged or argued, and it is the settled rule that this court will not, on an application for rehearing, consider grounds for reversal not presented upon the original hearing. (Merchants’ Bank v. Greenhood, 16 Mont. 460, 41 Pac. 250, 851; Forrester v. Boston & Montana Mining Co., 21 Mont. 565, 55 Pac. 353; Kaufman v. Cooper, 38 Mont. 16, 98 Pac. 504, 1135; In re Murphy’s Estate, 57 Mont. 286, 188 Pac. 146.)

¶4[5] It must be borne in mind that this action is not based upon the right of Joseph Mares as surviving partner to recover the partnership property for the benefit of the partnership, but, as appears from the allegations of the complaint and as stated in the original opinion, it is one for an accounting for the sole benefit of the plaintiff. The plaintiff is at least constructively in possession of all partnership books, property and assets, and is not in position to require an accounting from the executrix of the estate of the deceased partner respecting matters presumably alone within his knowledge and control. His duty as surviving partner is to subject all partnership assets to his possession and control, adjust and conclude the partnership affairs, and render account to the executrix of the deceased partner. If, upon liquidation of the partnership business, or in course thereof, it appears that the deceased partner is indebted to him over and above the partnership assets, then he must present his claim for allowance under the provisions of section 7525 of the Revised Codes.

¶5In the ease before us, having made selection of a remedy, he is bound thereby. The motion for a rehearing is denied.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Holloway concur.
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