Wilkinson v Page
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 1842 |
| Date | 26 January 1842 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 1036
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 193. Affirmed, 6 Jur. 567.
[276] wilkinson v. page. Dec. 23, 24, 1841; Jan. 20, 21, 26, 1842. [S. C. 11 L. J. Ch. 193. Affirmed, 6 Jur. 567.] An award, as between partners, providing for the application of the partnership assets, if there should be a surplus, but not providing for the event of a deficiency, is not, necessarily, invalid ; for the Court, in support of the award, may, in a proper case, intend that the state of the assets is such as to render the latter provision unnecessary. An award in other respects valid is not rendered invalid owing to the nature of the remedy to which the parties are left, in order to enforce obedience to the award, provided the remedy be sufficient. An award (under an order of reference in a cause seeking an account) directing accounts in question between the parties to be taken, without ordering payment of the balance which shall be found due, is not, therefore, bad; for the Court may enforce payment of such balance in the cause. A sum of money, constituting an item in an account, being one of the matters in reference, the arbitrator directed the accounts to be taken, and the sum in question to be paid at a certain time, without reference to the state of the accounts at that time. Semble, this does not necessarily affect the validity of the award. Among the matters referred to an arbitrator was the question, whether W. or P. ought to be ultimately liable upon a promissory note, of which P. was the maker, and W. an indorsee, as surety for P.; and whether P. was entitled to an indemnity from W. against the liability of P. to pay the note when it became due ? The arbitrator, by his award, among other things, declared that the liabilities of P. on the note, as between P. and W., should remain unaffected by the award. Held, that the award was not final, and was therefore bad. 1 HARE, 277. WILKINSON V. PAGE 1037 The Plaintiff, Michael Eaton Wilkinson, was for several years in partnership with Charles Pearson in the business of solicitors; the share of Pearson in the business being two-thirds, and that of the Plaintiff one-third. In October 1839 Pearson, being appointed the solicitor of the Corporation of London, retired from the partnership; and in January 1840 an agreement was entered into between Pearson (with the assent of the Plaintiff) and the Defendant, William Sagon Page, for the purchase by the latter of a moiety of the partnership business for the sum of 1500. The Defendant, in performance of this agreement, paid Pearson 150, and gave his promissory note, payable in February 1842, for the other 750. Pearson paid the 750 which he received into the partnership account, and he also gave the Plaintiff credit in the accounts between themselves for the amount due upon the promissory note, at the same time requiring the Plaintiff to indorse the note, which he accordingly did, thereby making himself a surety to Pearson for the payment of the amount due [277} thereon. Soon after the new partnership began the Defendant complained to Pearson that the profits of the business did not answer the expectations he had been led to form; and in the course of the year 1840 differences arose between the Plaintiff and the Defendant on the like grounds. These differences increasing, and the Plaintiff considering that the Defendant was not qualified to give, or did not give, that assistance in the business which he was bound to do, in March 1841 filed his bill, praying a dissolution, and that the accounts of the partnership might be wound up and settled. The Defendant, by his answer, in June 1841, insisted that as against him the Plaintiff had made no case for a dissolution ; but he submitted to a dissolution of the partnership, upon terms; the Defendant insisted that he had been induced, by the fraudulent representations of Pearson, to purchase a moiety of the partnership business at the price of 1500, and that the Plaintiff was a party or privy to such fraudulent representations, and ought, in equity, to be affected by the fraud. And the Defendant submitted that in any account between him and the Plaintiff, the Defendant ought to be allowed a deduction of the 750, the monies of the Defendant received by the Plaintiff, as appeared by the fifth schedule to the memorandum of agreement therein mentioned, which sum was obtained from the Defendant by such misrepresentations as aforesaid; and the Defendant further submitted that he ought, in any such account as aforesaid, to be indemnified by the Plaintiff against being called upon by Pearson, or any other party, for payment of the promissory note for 750, and interest, when the same might become due. The Defendant also said that, in the month of February 1841, the Plaintiff asked the Defendant to give him (the Plaintiff) an indemnity against the said promissory note for 750, alleging that Pearson threatened to hold him (the Plaintiff) [278] liable for the same; and that the Defendant, under the advice of his father, refused to give the required indemnity. By an order, dated the 10th of September 1841, upon the petition of the Plaintiff, and by the consent of the Defendant, all matters in difference...
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