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WOOD VS. GAULT AND EMORY. 441 it seems to me the plea of limitations is not an answer to the account prayed for by the bill. The bill alleges that the part- nership continued until the 1st of January, 1841, and that after the expiration thereof by lapse of time, the defendants who were active partners, proceeded to complete divers jobs of work in said business, contracted for and commenced, during its con- tinuance, for which they received divers large sums of money, of which among other matter he prays for an account. Now if is impossible to say when these sums of money (assuming the statement in the bill to be true) were received. They may have been received within the period of three years of the filing of the bill, and if so, may have the effect of taking the whole account out of the statute of limitations. At all events, I cer- tainly am not prepared now to say, that limitations are a bar. Nor do I think the defendants have made good their defence, founded upon a stated account. A man who pleads a stated account, says Lord Hardwicke in 2 Atk., 399, must show it was in writing, and likewise the balance in writing, or at least set forth what the balance was. He need not, to be sure, show that it was signed by the parties, as acquiescence in it without objection, for a length of time, will render it a stated account Willis vs. Jernagan, 2 Atk., 251. Nothing of the sort is shown in this case, no account stated, signed by, or acquiesced in, by the parties. A balance sheet is shown, but this cannot be made to perform the office of ah account stated between: the plaintiff and the defendants. This balance sheet, was to show the general condition of the firm, and not the particular state of the account between the plaintiff and his partners. Nor it pretended that the promissory note was given for any such balance, because assuming the balance sheet to show correctly the stituation of the affairs of the firm, the plaintiff was a debtor, and not a creditor. If the proof shows any thing in opposition to the title of the complainant to an account, it is not that an account has been stated between the parties, but that there was a compromise, and any assignment of the complainant's interest in the partnership, for a sum certain. Of this, however, I am |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 2, Page 441 View pdf image (33K) |
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