Kinney v. Robison

Campbell, J.

Plaintiffs being a firm known as Kinney, Adams & Co., sued defendant for items of an account verified under the statute. Defendant put in a plea accompanied by a sworn statement of set-off in a larger amount. Defendant recovered judgment for a balance, and plaintiffs bring error.

Objection is made that there was no regular notice of set-off. This objection has no force. The set-off was not only claimed, but sworn to. By stipulation the correctness of both sides of the account was admitted, but the question of the admissibility of the set-off was left open.

It is claimed that it could not be received, because it formed a part of unsettled partnership dealings. The plaintiffs in their firm capacity had formerly entered into an arrangement with defendant to carry on business on terms which, it is claimed, created a partnership. The items of set-off consisted of the purchase price of half of defendant’s stock, which plaintiffs bought of him and put in as capital. Also of rent which they agreed to pay defendant for premises used in the business. By the agreement under which their respective rights arose defendant leased to plaintiffs, by their firm name, an undivided half of the premises and fixtures and appurtenances for two years at $250 for the first year and $300 for the second year, payable at the end of each year. They were also to buy one-half of his stock at cost, and at the end of two years defendant was to buy at cost their half of stock then to be on hand. There were further articles as to partnership rights and duties.

Plaintiffs claim that their obligation to pay defendant for the interest sold and leased was part of the partnership business, and payment to be made by partnership settle- *393 meet. This is not the true view of the arrangement. Before they could put in any of this property as their own capital they must buy it, and until sold to them it was on no different footing than if owned by a third person. It was defendant’s separate property, and they could only get it by purchase. It could only be theirs to put in after they had bought it. The agreements to buy this stock and to pay the rent were separate transactions, preliminary to and independent of any of the partnership business.

If thus separate they might be prosecuted for like any other individual liability, and formed no necessary part of tlije partnership accounting. It could therefore make no difference if it were true, which is at least very doubtful, that in a chancery cause for such an accounting reference may have been made to them in the pleadings or testimony. A pending and undetermined chancery proceeding is no bar or obstacle in itself to a legal action, whatever may be the force of a final decree.

It is claimed further that the court below prevented plaintiffs from showing payment of the defendant’s claim. We find nothing in the record to indicate such a ruling. Some questions of an ambiguous character were ruled out on the ground that they involved an attempt to prove a parol agreement to vary a written one. Plaintiffs took no steps to correct this view of their proposition, and the court ruled correctly on the hypothesis thus tacitly accepted. No questions were asked calling for proof of actual payment beyond this.

There is no error in the record.

The judgment must be affirmed with costs.

The other Justices concurred.