M'FADDEN against ERWIN, 2 Whart. 37

The opinion of the Court was delivered by Kennedy, J. The rejection of the evidence, offered by the defendant below in support of his claim against the plaintiff there, as a set-off to the demand of the latter, is attempted to be supported upon two grounds First, Because it was, as is alleged, a claim for unliquidated damages: and second, Because it was a claim growing out of a partnership entered into between the plaintiff and the defendant for excavating a

section of a certain canal. In regard to the first ground, it is certainly a misapprehension of the true character of the demand, which the defendant below offered to prove against the plaintiff, to consider it a claim of unliquidated damages, or as being, from its nature, so uncertain as to be incapable of being reduced to certainty, and therefore not such as may be set up by the defendant under our defalcation act as a defence, either in whole or in part, to the plaintiff’s demand. Damages claimed for a breach of contract by one party against the other, on account of having done

an act contrary to his agreement, or for not having performed

an act, which by his agreement he was bound to do, may be deemed unliquidated in this sense, when the injury done or suffered is of such a nature as to furnish no fixed or certain rule for the measure of the damages thereby sustained: but surely this cannot be said of the defendant’s claim here, which was for money paid, laid out and expended by him, as he alleges, for the use of the plaintiff, who according to the agreement between them, was bound to' reimburse him. The measure of the damages or the amount, which the defendant would have a right to recover in such case, is perfectly certain and well settled.

For though the claim may consist of various sums of money paid at different times, yet upon its being shown by satisfactory evidence, that they were paid for the use of the plaintiff, under circumstances which impose upon him the obligation of reimbursement, the aggregate thereof with'interest thereon, from the times of payment, becomes the measure ■of the damages or sum that the defendant is entitled to be allowed, and is capable of being ascertained with mathematical certainty. Then as to the second ground taken in support of the rejection of the evidence, it appears to be equally untenable.

For admitting that the defendant and the plaintiff stood in the relation of co-partners, and that the moneys advanced and paid by the defendant, for which he claims tp be reimbursed, were paid by him as the co-partner of the plaintiff, it cannot be denied, if he has thus paid more than his due proportion, that the plaintiff is bound to reimburse him, so far that thé gain or loss of each may be equalized according to his interest under their partnership agreement.

But it has been objected, that such over-payment, and the amount thereof ought first to have been ascertained by a settlement between the parties in some way, before it can be made the subject of a set-off: if the defendant, however, has made such over-payment, as he alleges, and a jury be competent to decide on this fact, and to ascertain the amount thereof, there is certainly no good reason why the matter should not be submitted to them for that purpose.

The partnership between the plaintiff and the defendant, it would seem,, was formed with a view to accomplish a single object, and being by its terms confined to one transaction only, that of excavating a

section or small part of a canal, it cannot be supposed that the labour done and the money paid out on account thereof were very complex, and such as to require auditors to settle and adjust the accounts relative thereto between the parties. This being the case, the matters in controversy, growing out of the partnership here, could have been determined more speedily and quite as well by the jury as by auditors, and therefore ought to have been submitted to them. This doctrine was laid down in Brubacker v. Robinson, (3 Penn. Rep. 295); and the case ruled in accordance with it; as also the case of Galbraith v.

Moore afterwards, (2 Watts, 86.) But even if it were a partnership involving a series of transactions and matters of account of the greatest complexity, the jury are now made perfectly competent to the task of settling and adjusting the accounts of the parties by the act of assembly, of the 4th of April, 1831, Pamph. L. 492.

It is-thereby enacted “that in all actions of account-render, the jury before whom the same shall be tried, shall have full power to settle the accounts of the. parties, and find' in favour of the plaintiff or of one or more of the defendants, such sum or sums as shall appear to be due.” By this act, it would seem, that every objection, which stood previously thereto in the way of referring the settlement of partnership accounts to a jury, is completely removed, however complicated they may be.

Anterior to the passage of this act, it was deemed necessary to have auditor? appointed to state and settle complicated accounts of a co-partnership ; and as auditors could not be appointed by the authority of the Court, without the consent of the parties, in any other form of action than that of account-render, assumpsit was therefore held not to lie for one partner against another, to compel the payment of money received by the latter beyond his due proportion, nor for the reimbursement of moneys paid by the former beyond what his interest in the partnership required: but the form of the action, whether assumpsit or account-render, ymuld seem now not to be material, seeing the settlement of the accounts is to be made, not by auditors, but by a jury, who can have all the lights and facilities to enable them to do so in the one form of action that they could have in the other.

We therefore think it is no objection to the receiving of the defendant’s claim as a set-off in this case against the plaintiff’s demand, that it arises out of a partnership-transaction and renders a settlement of the accounts thereof necessary to be made by the jury. Judgment reversed, and a venire de novo awarded.