Opinion
23 Cal. 427 at 428.
Original Opinion of October 1863, Reported at: 23 Cal. 427.
COUNSEL:
The complaint does not contain facts which constitute a cause of action; and the demurrer should have been sustained. It shows defendants surviving partners by law; they alone could settle the partnership. (Wood's Dig. 411, Art. 2317, Sec. 198.) And they could only be sued when they had abused their trust; but the complaint charges no facts showing abuse. (Story on Part. Secs. 344-346; Collyer on Part. Sec. 129; 3 Kent's Com. 37; Evans v. Evans, 9 Paige, 178.) And having commenced in the Probate Court, he should have continued there. (Blanton v. King, 2 How., Miss., 861; Carmeischel v. Brawder , 3 Id. 252; Kimball v. Kimball, 19 Ver. 579.)
Shattuck, Spencer & Reichert, for Appellants.
Wm. Ross and R. Robinson, for Respondent.
JUDGES: A rehearing was granted, and after reargument, Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
It seems to us that the report of the referee, and the consequent judgment of the Court, is erroneous in this: That it decrees that the defendants, as surviving partners, are liable for the full amount found to be due of assets collected or in the hands of these survivors, without regard to the indebtedness of some $ 7,500 found to be due in Missouri, on account of the firm operations. We understand that the partnership was formed in Missouri, and comprehended, as well transactions in that State, as in this; and a full settlement should involve and conclude as well transactions there as here. The administrator of the deceased partner, therefore, is not entitled to a decree, irrespective of the firm debts there; and the survivors would seem to be entitled to retain in their own hands, money, or assets, sufficient to pay this indebtedness, whether due in Missouri, or on contracts made there or here. But if we are mistaken in this, it is obvious that the report of the referee, which seems to be the whole predicate of the decree of the District Court, does not furnish any ground for such decree; for the referee says that it is impossible for him to ascertain the true state of the accounts, or make a full settlement in this respect, in the absence of information as to the amount of the Missouri debts, or by whom they were paid.
Judgment reversed, and cause remanded.