Brandt, Admr. of Mentzer v. Hollinger. be necessary for the purposes of winding up its then pending affairs. Lindley on Partnership, Vol. 2, Section 571, page 950. See also Cyc. 650. In Becker v. Hill, 20 L. L. R. 345, Judge Landis decided that abandonment by a partner of the partnership is evidence of and effects a dissolution, and a formal decree dissolving the partnership is unnecessary. Slemmer's Appeal, 58 Pa. 168, decided that one partner may at any time withdraw and cause a technical dissolution of the firm, subject to liability to his partners if the act be wrongful. A dissolution of a partnership at will may be inferred from circumstances. Lindley on Partnership, Vol. 2, page 956, Section 572. "It is also true that the relation may be terminated by the conduct of the partners without any express agreement therefor by a sort of estoppel." Rawley on Modern Law of Partnership, 1916 Edition, Vol. 2, Sec. 574 on page 735. Under the law, dissolution may be caused by the express will of any partner when no definite term is specified. There was a change in the relationship of the partners and Mentzer was no longer associated in the carrying on of the partnership business as a partner after November, 1913. Ordinarily, a dissolution of a partnership does not terminate the partnership, but it continues until the winding up of the partnership affairs is completed. The time at which an accounting of a partnership is to stop is the date of the dissolution of the firm. However, in this case, an accounting of partnership dealings and transactions should include such debits or credits for moneys received or payable by the partners, or either of them, which are connected with a dissolution as of November 1, 1913. The time from which the account in this case is to be taken is from the commencement of the partnership, unless an account or accounts have since at any time been settled by and between the partners, in which event the last settled account is the starting point. The case of McConomy v. Reed et al., 152 Pa. 42, a Lancaster County case, requires consideration in connection with the facts of this case. In that case a partner who had overdrawn his account with his firm was requested to make it good but did not do so. A year later he was requested to withdraw. From that date until his death he had no business transactions with the partnership and made no claim upon it. Shortly after the death of his brother, who was a member of the firm, he solicited a loan from a surviving member, but made no demand or claim upon the firm effects. Held, that there was a dissolution of the firm by acquiescence in the demand, and a bill for an account by legal representatives would be refused. In that case McConomy had overdrawn his account with the partnership to the extent of almost Seven Thousand Dollars ($7000.00) and the master found that McConomy was indebted to the partnership in that sum. In the case at bar, however, it does not appear that Mentzer had overdrawn his account or was indebted to the partnership over and above his interest in the assets thereof. It is shown only that Mentzer had drawn out Thirty-Eight Hundred and Thirty-Eight Dollars and Thirteen Cents more than Hollinger. The cited case is authority for the dissolution feature of the case at bar. Both Mentzer and Hollinger had knowledge of the facts which Brandt, Admr. of Mentzer v. Hollinger. caused the dissolution. Accordingly the principle of estoppel is not applicable. In Bright v. Allan, 203 Pa. 394, it was held : "When both parties are aware of their respective rights, the doctrine of estoppel has no place in law or in equity." There is no evidence that Mentzer consented or agreed to consider the cancellation of his alleged overdraft as compared with Hollinger, or the subsequent assumption of outstanding partnership obligations by Hollinger as a full and final settlement between them. Such inference might be drawn from Mentzer's legal silence for almost two years after 1913 until the time of his death in August, 1915. In McConomy v. Reed, supra, the Supreme Court said: "If this action had been instituted and prosecuted to judgment in the lifetime of Ambrose McConomy, it is probable that the question in dispute would have been determined on the testimony of the parties to it. But, by death and the policy of law, the mouths of the persons most conversant with the matter under investigation were closed, and the opposite findings by the master and court were mainly deductions or inferences from uncontroverted facts. The finding, therefore, which best accords with these facts, and is, in our opinion, the natural and just conclusion from them, will be sustained." The evidence in this case, however, does not warrant the conclusion that there was a final settlement or mutual agreement between Mentzer and Hollinger. See Seaton v. Shaner et al., 158 Pa. 69, and McGinn v. Benner, 180 Pa. 396. The subsequent employment of Mentzer on a weekly salary by Hollinger and Company does not affect the legal rights of the partners up to November, 1913. See also Easterly v. Bressler, 15 Sup. 455. Does Mentzer's silence or acquiescence raise a bar against an accounting? The Statute closes upon partners who for six years after dissolution take no steps to ascertain the balance between them. The Statute of Limitations does not run against an open account between partners. See Borland's Appeal, 234 Pa. 280; Herron v. Herron, 64 Sup. 569, and Guldin v. Lorah, 141 Pa. 109. It does not appear whether the partnership was solvent or insolvent or whether Mentzer had any equity in the partnership assets if their respective contributions were repaid and the partnership debts liquidated about November 1, 1913. The fact that there may be no balance is not material. See Bradly v. Jennings, 201 Pa. 473, which decided: "Where a prima facie right to an account is shown by the pleadings, the defense that there will be no balance due plaintiff is not sufficient to prevent an accounting." In Parry v. Lackawanna Association, 72 Sup. 603 (Advance Reports), the Court said: We need but refer to 'An Act relating to and regulating partnerships,' approved March 26, 1915, P. L. 18, which follows, in most of its provisions, the general law of partnerships as previously expounded, as a guide in working out the relative rights and duties of the parties to this suit." There is no necessity for the appointment of a receiver in this Brandt, Admr. of Mentzer v. Hollinger. 227, "appointments of receivers are not a matter of right even where partnerships exist, but are within the sound discretion of the court and will not be made where no good purpose would be served." "Unless there are exceptional reasons for doing otherwise, it is the rule, in the settlement of a partnership business by proceedings in equity before a master, to charge the costs of the proceedings, including the master's fee, to the copartnership, or to the parties, equally." Gordon v. Moore, 134 Pa. 486. The referee's decree ordered an accounting and he subsequently dismissed exceptions filed to his finding. July 3, 1920. Opinion by LANDIS, P. J. On April 11, 1916, the plaintiff filed his bill of complaint against the defendant, in which he charged that, in the year 1883 or the beginning of the year 1884, Jacob F. Mentzer and J. P. Hollinger entered into a copartnership for the purchase and sale of groceries by wholesale under the firm name of Mentzer and Hollinger; that about November, 1913, without the acquiescence of Jacob F. Mentzer, the firm name was changed to J. P. Hollinger & Company; that Jacob F. Mentzer died on August 31, 1915, and letters of administration on his estate were granted to the plaintiff; that the defendant, although requested to close out the business of the partnership, refused to do so. The prayers of the bill were: First, for a dissolution of the partnership; second, that an account be stated; and third, that a receiver be appointed. The defendant filed an answer to the bill, in which he admitted that the original partnership was entered into between him and Jacob. F. Mentzer in April, 1884, and that Jacob F. Mentzer was to contribute $3,000 as his share; that he only paid into the partnership $2,200, whereas the defendant contributed $4,381; that about November, 1913, Jacob F. Mentzer's attention was called to the fact that Hollinger has contributed considerably more than he had, and that Mentzer had drawn out $3,838.13 more than Hollinger, and that the firm also owed Hollinger for rent for the use and occupation of his building for many years. Mentzer was told that he would have to put in more money or retire from the partnership, and he thereupon said he would quit as a partner and would work as an employe. Thereupon, with his full knowledge, acquiescence and consent, the name of the business was changed to J. P. Hollinger & Company, and the defendant assumed all the debts and obligations of the partnership. Thereafter, Mentzer was paid a salary of fifteen dollars a week, until December, 1914, and thereafter ten dollars a week. A large amount of testimony was taken, and it was thereby disclosed that, on April 12, 1884, Jacob F. Mentzer gave a check, which was deposited to the account of Mentzer & Hollinger, for $2,200; that the buildings used by the partnership as a warehouse and stable were owned by the defendant and no rental was charged up against the partnership for the same; that about November, 1913, Jacob F. Mentzer had drawn out of the partnership the sum of $50,341.63, and J. P. Brandt, Admr. of Mentzer v. Hollinger. Hollinger had drawn out the sum of $46,503.50, so that Mentzer had drawn from the partnership $3,838.13 more than Hollinger; that about November, 1913, the partnership was changed from Mentzer & Hollinger to J. P. Hollinger & Company, and the name was likewise changed on the sign, stationery, bill and letterheads, and the business. cards; that at that time the firm of Mentzer & Hollinger was largely indebted on promissory notes to the Farmers' Trust Company, the Northern National Bank, the Northern Trust, Savings & Deposit Company, and various individuals; that the amount of notes due the Farmers' Trust Company was $20,100, the amount of those due the Northern National Bank was $17,000, and the amount of those due the Northern Trust, Savings & Deposit Company was $16,100; that all of these notes were then taken up and notes of J. P. Hollinger & Company, endorsed by J. P. Hollinger individually, were substituted for them; that the defendant had charge of the finances of the partnership, and, on November 13, 1913, the bank account at the Northern National Bank was changed from Mentzer & Hollinger to J. P. Hollinger & Company; that prior to the change, Mr. Mentzer got groceries and whatever he wanted from the firm, and they were charged to his personal account, but after the change there was a charge account, which in three or four months was closed out, and he was allowed a weekly wage and was no longer permitted to charge any groceries; that he was then there the same as the other employes. The bookkeeper testified that one morning Mr. Mentzer came down and said to him: 'Harry, you have got it J. P. Hollinger & Company now. Are you the company.", and that he replied, "I am not it.” From these facts the Referee found, and we think properly, that there was a dissolution of the partnership of Mentzer & Hollinger on or about November 1, 1913; that there was no definite time fixed for the existence of the partnership, and that, therefore, it was a partnership at will. Following Becker v. Hill, 20 LANC. LAW REVIEW 345, he decided that the abandonment by a partner of the partnership business is evidence of and effects a dissolution, and a formal decree dissolving the partnership is unnecessary. The testimony showed that the stock at the time of the dissolution amounted to about $30,000; but there was no evidence as to book accounts nor current liabilities, outside of the notes above mentioned. The Referee declined to recommend a decree dissolving the partnership, and also held that a receiver should not be appointed; but he decided that an account should be stated between the parties, and this is the question which now presents itself to us. In his report he says: "The evidence in this case, however, does not warrant the conclusion that there was a final settlement or mutual agreement between Mentzer & Hollinger." We are not satisfied with the correctness of this position. It is admitted that, at the time of the dissolution, both of the parties were fully cognizant of the situation. The partnership was indebted to Hollinger, and Mentzer had overdrawn his account. The latter knew of the change in the name of the partnership, and, accepting employment under J. P. Hollinger & Company, he remained in that. Brandt, Admr. of Mentzer v. Hollinger. position for two years after the dissolution. He demanded no accounting from Hollinger, and a good reason appears why he was content to accept the situation. Taking the assets of the firm at $30,000, the notes due to banks aggregated $53,200, exclusive of other notes due to individuals. All of this indebtedness Mr. Hollinger took up, assumed and subsequently paid. The rights of creditors are not here involved, and there is no evidence that, under any circumstances, Mentzer is entitled to receive anything from the assets of the old firm. As he is dead, and Hollinger's mouth is thereby closed, it would seem to be a hardship, under such circumstances, to impose upon the latter the burden of filing an account at this late day. It seems to us that the case of McConomy v. Reed et al., 152 Pa. 42, is conclusive upon this question. There a partner who had overdrawn his account with his firm was requested to make it good, but did not do so. A year later he was requested to withdraw. From that date until his death he had no business transactions with the partnership and made no claim upon it. Shortly after the death of his brother, who was a member of the firm, he solicited a loan from a surviving member, but made no demand or claim upon the firm effects. It was held that there was a dissolution of the firm by acquiescence in the demand, and that a bill for an account by his legal representatives should be refused. For this reason we are of the opinion that the seventh exception should be sustained and that the bill of complaint should be dismissed. Exception sustained and bill dismissed. Bar Association Meeting. The regular semi-annual meeting of the Lancaster Bar Association was held in Court Room No. 1 at 2:00 p. m. on Monday, December 13, 1920, with President Chas. I. Landis in the chair. Treasurer Nauman reported a balance in the treasury. Chairman Frantz of the committee appointed to secure a telephone in the library reported no progress by reason of a disagreement between the County Commissioners and the telephone company. The Board of Censors reported no action. On motion, it was resolved to insure the portraits in the Court rooms, the matter being left to the President and Treasurer with power to act. T. Roberts Appel introduced the subject of alterations and improved accommodations in the Court House which has several times been agitated before the Law Library Association. On motion, the following committee was appointed to confer with the County Commissioners: T. Roberts Appel, Oliver S. Schaeffer, H. Edgar Sherts, M. M. Harnish and B. C. Atlee. The following officers were elected for the ensuing year: President, Hon. Chas. I. Landis; Vice President, John E. Malone; Treasurer, John A. Nauman; Secretary, Bernard J. Myers; and Board of Censors, William N. Appel, John E. Malone, Redmond Conyngham, G. Ross Eshleman and F. Lyman Windolph. |