Marx v. Bloom

Howe, J. This action is brought upon an open account for bill oi goods sold and delivered to defendant, November 2, 1862. The defendant excepted, and answered that there existed a partnership between the plaintiff and himself in reference to the goods whose price is sued for, and also in reference to certain liquors The judge before whom the case was tried arrived at tfte conclusion that the partnership existed, that the goods were shipped to the defendant for sale, the profits to be divided between plaintiff and defendant; and an examination of the testimony leads us to the same conclusion. But we think the court erred in holding that under these circumstances the plaintiffs were not bound to resort to an action of accounting and settlement. It is true there was but one shipment, but that fact is not decisive of the question, for there may be many items of accounting necessary to fix the rights or liabilities of partners in the profits or losses of a single consignment. 13 A. 576 , *7 Tlio view we have taken of the ease renders it unnecessary to consider the plea of proscription of three years. For the reasons given it is ordered and adjudged that the judgment' appealed from he reversed, and that there ho judgment dismissing the claim of plaintiffs, witli costs in hoth courts, reserving, however, their rights to sue for a settlement of these transactions, considered as those of a partnership.