Nixon v. Morse, 194 N.C. 225 (1927)

Sept. 14, 1927 · Supreme Court of North Carolina

194 N.C. 225

JULIAN C. NIXON v. W. J. MORSE.

(Filed 14 September, 1927.)

Partnership — Actions—Accounting—Adjustment.

One partner cannot maintain an action against his copartner for an indebtedness growing out of the' relationship of partnership, unless there has been a settlement between them of the partnership business or some sufficient accounting or adjustment by which to determine their respective liability.

Appeal by plaintiff from Daniels, J., at March Term, 1927, of Ctjr-RiTucic.

No error.

Action to recover upon notes executed by defendant, payable to tbe order of Richardson-Nixon Company, and upon an account for advancements made by said company to defendant. At tbe date of said notes and advancements, tbe Richardson-Nixon Company was a partnership, engaged in business in tbe city of Norfolk, Ya.

Plaintiff alleges tbat be is tbe owner of said notes by endorsement, and of said account by assignment made to him by said company, upon its dissolution.

Defendant alleges tbat be and plaintiff were partners under the firm name and style of Richardson-Nixon Company; tbat tbe notes and account sued upon are part of the assets of said partnership, and that the affairs of said partnership have not been adjusted or settled. He alleges that said partnership is indebted to him, and sets up said indebtedness as a counterclaim against plaintiff.

Plaintiff, in his reply, denies that defendant was at any time a member of the firm doing business as Richardson-Nixon Company; he also denies that said partnership is indebted in any sum to defendant.

The issues were answered by the jury as follows:

1. Were plaintiff and defendant partners in the Richardson-Nixon Company, as alleged in the answer? Answer: Yes.

2. Is the defendant indebted to plaintiff as alleged in the complaint, and if so, in what amount? Answer: No.

3. Is plaintiff indebted to defendant as alleged in the answer, and if so, in what amount? Answer: No.

From judgment upon the verdict, plaintiff appealed to the Supreme Court.

McMullan & LcRoy for plaintiff.

Ehringhaus & Hall for defendant.

Peb Cubiam.

Plaintiff’s assignments of error upon his appeal to this Court cannot be sustained.

The jury has found that plaintiff and defendant were partners under the firm name and style of Richardson-Nixon Company. The notes sued upon, executed by defendant, were payable to the order of the partnership; the advancements were made by the partnership to defendant. Both the notes and the account for advancements are assets of the partnership. Neither plaintiff nor defendant can maintain an action against the other for the recovery of partnership assets. There has been no settlement of the partnership business. The claims of plaintiff and defendant, growing out of their dealings with the partnership, have not been adjusted. There has been no accounting between the partnership and its members, in order to determine their respective rights in and to the partnership assets.

The judgment is affirmed. There is

No error.