Brown v Perkins
| Jurisdiction | England & Wales |
| Judgment Date | 16 March 1843 |
| Date | 16 March 1843 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 1155
HIGH COURT OF CHANCERY
S. C. 6 Jur. 727. For subsequent proceedings, see 2 Hare, 540.
[564] brown v. perkins. June 3, 7, 1842. [S. C. 6 Jur. 727. For subsequent proceedings, see 2 Hare, 540.] To a bill for an account of the dealings and transactions of a partnership, by the executors of a deceased partner, the Defendant pleaded that, for a certain consideration, an agreement (not in writing) was entered into between the testator and himself, that all accounts between them and all claims of the testator in respect of the estate, monies and effects of the partnership, and the debts due to and from the same, should be waived. Held, that the agreement should be construed to import that the Defendant thereby took upon himself the discharge of the partnership liabilities, but that the plea was bad, inasmuch as it did not aver that no such liabilities still remained to be discharged. Semble, there is no rule that a release or a stated account are the only defences which can be set up by way of plea to a bill for an account. The bill stated that in March 1836 the Defendant, W. Perkins, and C. Brown agreed to enter into partnership as attornies and solicitors at Merthyr Tydvil; and 1156 BROWN V.. PERKINS 1 HARE,565. that by articles in writing it was covenanted and agreed to the eifect:-1. That Brown should be admitted a partner with Perkins for ten years. 2. The capital to continue the capital of Perkins, arid all the practice, goodwill and liens to belong to him. 4. Perkins to be the cashier, and all monies to be received and paid by him; and accounts kept and made out half-yearly ; for the first four years and a hall Perkins to have three-fourths of the profits, and Brown one-fourth, and afterwards the former two-thirds and the latter one-third. 15. The partnership to be determinable on notice by either partner, upon any breach of duty by the other as therein mentioned. 16. On dissolution of the partnership by notice from Perkins, or by the decree of any Court, by reason of the misconduct of Brown, Brown should not be at liberty, for the term of seven years after such dissolution, to act or practise as an attorney, or solicitor, or conveyancer at or within twenty miles of Merthyr Tydvil, or to act as clerk in the office of any attorney, solicitor or conveyancer, at or within twenty miles of the same place; and Brown for every such act to forfeit and pay the sum of 1000 to Perkins as stated or liquidated damages. The bill stated that the partnership was carried on under the articles, and during the continuance thereof Brown in all things acted in conformity with such arti-[565]-cles; but that Perkins received monies on the partnership account which he did not duly account for, or enter in the books : that, differences arising, the partnership was, in November 1837, dissolved by mutual consent. That by an agreement in writing made on the 10th of December 1837 it was recited that Perkins and Brown had agreed to dissolve their partnership; and that differences having arisen between them on their respective rights and liabilities as co-partners, and touching the estate, monies and effects of the partnership, and of the debts due to and from the same, and the terms and conditions of their said dissolution, in order to put an end thereto, the parties had agreed to refer the same to the final arbitration of Gr. Lisle and E. Stephens, and Perkins and Brown thereby bound themselves to abide by the award of such arbitrators, and that the submission should be made a rule of Court. The bill stated that the arbitrators did not proceed in the reference, and made no award, owing to Perkins not having delivered the necessary accounts and papers. That considerable sums in respect of his share of the profits remained due from Perkins to Brown, and no settlement was made. That Brown died in 1841, having by his will appointed the Plaintiffs his executor and executrix. The bill prayed that an account might be taken of the co-partnership dealings and transactions, and of all monies received by Perkins since the dissolution thereof, in respect of such partnership transactions, and that he might pay to the Plaintiffs what, upon taking such account, should appear to be due to the estate of their testator, with interests thereon, the Plaintiffs thereby offering out of the assets of the testator to pay to the Defendant what, if anything, should appear to be due from the joint concern on taking such accounts. The bill also prayed a receiver and an injunction to restrain [566] Perkins from collecting the monies due to the co-partnership. The Defendant, Perkins, by plea said that, amongst the differences and disputes, which had arisen, and were depending between him and Brown, and which by the said agreement were referred to...
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