Day v. Lockwood and Lockwood v. Day.

ent, however comprehensive the allegations in the declaration might be; so, in the present case, had Lockwood continued in possession of the farm for a third year, under circumstances showing that it was under a new agreement, although of the same kind, and upon the same terms as the former, he would not be accountable, in the present suit, for the produce on the farm, during that year.

But for another reason, we think this objection ought not to prevail. Although it is alleged in the remonstrance, that the account was taken for the whole year, it does not necessarily follow that it embraced any items of property, gathered from the farm during the last three months of that year. And, practically, we know that during these months very little if anything could be so gathered.

To justify us, in setting aside the report for this cause, we think the objection ought to have been more definitely made, showing clearly that the defendant was prejudiced by the decision of the auditors.

In the case of Lockwood against Day, it is in the first place urged that the auditors erred in allowing Day the full amount of the Pritchard note, as capital stock advanced by him.

What amount of capital was paid in, by the partners, was a question of fact for the determination of the auditors, depending upon the understanding and agreement of the partners. They might have agreed that the. note should be received at its full amount, or only for the sum of two thousand dollars, or only for so much as might thereafter be collected upon it.

The court below has found that the note was received at the amount specified in it, because the auditors found, as a matter of fact, that such was the understanding and agreement of the parties. Surely there can be nothing erroneous

in that.

Again it is said, that Day had stated, in the declaration in his suit, that he had put in two thousand dollars, and never,

Day v. Lockwood and Lockwood v. Day.

previous to the hearing before the auditors, had he claimed that he had advanced more.

These facts were undoubtedly proper evidence in support of Lockwood's claim that Day had advanced but two thousand dollars; but they were only evidence to be weighed and considered, with other evidence in the case. Day might have shown, and probably did show, that the allegation in his declaration, was inserted by mistake, in reference to the amount. It did not amount to an estoppel, and as testimony in the case might be rebutted by other evidence.

But the auditors did not allow Lockwood the expenses incurred by him in the collection of the note, and the deduction made upon the final settlement. And there is a sufficient reason for their so doing. He failed to establish his claims to the satisfaction of the auditors. Surely they were not bound to allow claims, not sufficiently supported by evidence.

2. The claim, respecting the money and accounts in the hands of Griffith, is equally groundless. Why should Day be charged with them, any more than Lockwood? The accounts were placed in Griffith's hands for collection, by the mutual consent of both parties.

The payments, made by him to Day, were proper, because the report of the auditors shows that Lockwood had already received more of the partnership property, than his share.

The direction given by Day to Griffith to suspend the collection of the accounts, while the auditors were investigating the concerns of the partnership, was not such an act as rendered him chargeable for any loss that might afterward

accrue.

Whether an action at law will lie to settle a partnership concern, while there are outstanding debts uncollected, and common property remaining undisposed of, is a question we do not propose to consider, for the reason already stated, that neither party has thought proper to present any such question for our consideration; and if either had, it was a

Day v. Lockwood and Lockwood v. Day.

question not for the auditors, but for the court, before the cause was sent to them.

It is obvious, however, that it is in the power of a court of equity, under such circumstances, to do more complete justice to the parties than can be done in an action at law. That court might, by its decree, direct what disposition should be made of the common property, and provide for the collection of outstanding debts, in a manner that could not be done in a court of law. In the present case, however, the common property must remain to be hereafter disposed of, in such manner as the parties may think proper to adopt.

It will hardly do for Lockwood to bring an action at law for the settlement of a partnership concern, before the business has been closed, and after the cause has been referred to auditors, and a balance found against him, then say that no judgment can be rendered against him, because the suit was prematurely brought. His conduct amounts to a waiver of that objection.

The remaining question is attended with more difficulty. The auditors have not only allowed Day the amount which he claimed to have put in as capital stock, but the interest upon it. His right to such interest depends entirely upon the understanding and agreement of the partners; and without any such understanding, the charge of interest was illegal.

It was competent for the parties to agree that interest should be allowed upon the sums advanced by each partner as capital, or that, in consequence of the superior skill of one partner, or his greater attention to business, the other should put in a greater amount of capital, and that the profits should be equally divided. In the latter case, no interest ought to be allowed.

In the present case, it does not sufficiently appear that there was any understanding, or agreement, of the parties, that Day should be allowed interest upon his part of the

Monroe and others v. The Borough of Danbury.

capital, and therefore the allowance of interest does not appear to have been rightfully made.

Our advice to the superior court, therefore, is, that the report of the auditors, in the case of Day against Lockwood, be accepted, and that the report, in the case of Lockwood against Day, be recommitted to the auditors, for them to find whether, in fact, there was an agreement that interest should be allowed upon the capital stock invested, and that, if they do not find such agreement, they correct their report, by the disallowance of interest thereon.

In this opinion, the other judges, STORRS and HINMAN, concurred.

MONROE AND OTHERS VS. THE BOROUGH OF DANBURY.

Where a petition for a highway, within the limits of the borough of B., was brought to the county court, after said borough had commenced such proceedings as were requisite by its charter, in order to lay out a part of the highway prayed for, and before the county commissioners, to whom the petition was referred, acted on it, caused said part to be laid out and established as a highway; it was held, that it was the duty of the commissioners to refrain from laying out that part which had already become a lawful highway by the proceedings of said borough.

Where, in such case, in a remonstrance to the report of the commissioners, laying out the whole of said highway, the county court, on setting aside such report, rendered a final judgment against the petitioners, and decreed that the respondents should recover their cost; it was held, 1. That such report should have been recommitted: 2. That no special motion for such recommitment by the petitioners was necessary, and therefore that such judgment

was erroneous.

THIS was a petition, brought by certain inhabitants of the

Monroe and others v. The Borough of Danbury.

borough of Danbury, to the term of the county court for Fairfield county, holden in December, 1853, praying for the laying out and establishing a new highway, within the limits of said borough.

The court referred the petition to the county commissioners, who, having heard the same, made their report to said court, at the term holden in August, 1854, finding therein, that the special convenience and necessity of said borough, and its inhabitants, required said road, and laying out the same, and assessing the damages occasioned to the proprie tors of the land, over which the road passed.

Against the acceptance of this report the defendants remonstrated, upon several grounds. In reference to the alle gations contained in the seventh ground of remonstrance, the court found, that, on the 16th day of July, 1853, the wardens and burgesses of said borough, in conformity with the provisions of the charter of said borough, after giving notice, laid out a certain highway, within the limits of said borough, appointed freeholders to assess the damages sustained by the persons over whose land the road passed, who, in the same month, accordingly assessed such damages; that, on the 20th day of July, 1853, they caused assessments to be made, and paid, by those persons owning land, which would be specially benefited by such laying out, and that said road, so laid out, became and was, at the time of the hearing by said commissioners, a legal highway, and that said borough had paid for the damages, assessed as aforesaid, more than three hundred dollars.

The court further found, that "the road, so laid out by said commissioners, running through the land of the individuals, to whom said commissioners assessed said damages, was the same road, or highway, in all respects, and was laid out on the same ground as the road, so laid out by said warden and burgesses, and accepted by said borough, and in no respect different, and at the time said commissioners laid out said highway, and before their final meeting upon