Ross v. Cornell

         A balance having been ascertained and struck, the partner in whose favor it is found can sue the other at law after dissolution, if the other promises to pay. (Gulick v. Gulick, 2 Green, N. J. 578; Byrd v. Fox , 8 Mo. 574.) And the promise need not be expressed, but may be implied, as in any other contract. (Wray v. Milestorn, 5 M. & W. 21; Fanning v. Chadwick, 3 Pick. 423; Rackstraw v. Imber, Holt, 368.)

         Now here it is distinctly alleged that Cornell, at the time of his withdrawal from the firm, owed this amount of money--that is, that he was that much behind with his partners on the expense account. This was the balance due them from him; and the law implies that he promised to pay it.

         After Cornell withdrew from the firm he became a tenant in common with his former partners in the ownership of the sawed lumberin the yard. That one tenant in common can sue another for services rendered in behalf of the common property is too plain to require either argument or authority, and that, too, in the absence of any express promise to pay.

         OPINION          By the Court:

         Upon looking into the record we are of opinion that the action cannot be maintained. The accounts of the copartnership in which the defendant and the plaintiffs had been concerned for some two years, do not appear to have been settled and a final balance ascertained--certainly not within the rule which permits a suit at law for the recovery of such balance. The complaint itself sets forth several matters which appear to be yet unsettled: the sale of the interest of the defendant in the sawed lumber, by the plaintiffs; the expenses attending the sale of the same; the amount raised thereon; how it was applied; whether it was sufficient to pay off the outstanding indebtedness, etc. Besides, it is not easy to see upon what principle the plaintiffs are to maintain a joint action at law against the other member of the late firm. The dissolution of the copartnership necessarily severed the copartnership relations of each of its members.

         It may not at this day be necessary, in order to maintain an action at law against a copartner, or one who had been such, to show an express promise to pay a sum of money already ascertained as the balance due, but it is necessary that the balance itself must be one which has been ascertained by the act of both parties --in other words, agreed to as constituting a balance due.

         Judgment reversed and cause remanded.