Russell and another against Green, 10 Conn. 269

Williams, J; The defendant objects to this report, in the first place, that it appears upon the bill itself, that there is adequate remedy at law. It is certainly very late to take this exception, after the appointment of a committee, and a report of that committee, and all the attendant expenses have been incurred. If the court were satisfied, that it had no jurisdiction, I do not see but this objection would be fatal.

But it has been decided, that wherever there are more than two partners, resort must be had to chancery to settle their accounts; as that is the only forum that can examine and adjust them in a single suit. The contract shewn in this bill seems to be of that nature; though it is not so denominated. These parties agree to purchase a quantity of pine lumber, to be held, owned and paid for, in these proportions : John and Warren Russell one quarter, each, and Green one half; Green to ship it to New- York, dispose of it, and pay over the net avails according to their interest.

Of course, there was a community of interest in this lumber; as there was nothing to distinguish one part from another. The net avails were to be paid over. Each, therefore, was to share in profit and loss; which is the ordinary test of partnership. Saville v. Robertson, 4 Term Rep. 720. And without determining that these individuals would have been liable as partners for the lumber purchased, I think they would as partners have been liable for its freight to New- York. Post & al. v. Kimberly & al. 9 Johns. Rep. 470.

At all events, whether partners or not, such difficulties exist in settling an account of this kind at law, that I cannot-say» there is adequate remedy there. This objection, then, cannot prevail. Another objection has been made, that the interest found by the committee, does not correspond with that alleged in the bill: that the committee have found a joint interest, and the bill shows a separate interest in the owners of this pine lumber.

The committee do, indeed, findj that after the lumber had been sent to New- York, Green executed to the Russells a receipt, stating the quantity they owned, and that they were to receive the net avails of the average of said lumber agreeably to their proportions, when sold, &c. They also find, that the lumber was purchased, to be held and paid for in the following proportions, viz. John C. Russell one fourth, and Warren Russell one fourth, each, and Timothy Green one half. This is precisely as stated in the bill.

If the receipt, therefore, imported any thing to the contrary, as that is merely evidence, and perhaps but part of the evidence, the court must look to the facts as found by the committee. It is believed, however, there is nothing in the receipt inconsistent with the charge in the bill. That is a charge of a joint interest, stating how, upon settlement, the proportions are to be adjusted. We come to the question upon what principle is this account to be settled. There is to be a loss, or Virginia lands must be taken.

It seems, that in the year 1816s Green shipped this lumber to the care of one Jackson ; that soon after, he consigned to him a quantity of oak and chesnut lumber of his own ; and it does not appear, that he ever informed Jackson the lumber was owned by different persons, nor directed him to keep separate accounts ; that the pine lumber sold readily, but there was more delay about the oak and chesnut; that Green received, from time to time, considerable sums of money from Jackson, but no account; and that in 1822, he made a compromise with Jackson, took his notes for a certain amount, and a deed of 500 acres of land in Virginia for the remainder; and that these notes and this deed were taken in his own name, and without any directions from the others concerned ; but that it was done in good faith, and was, as he believed, the best arrangement which could be made.

Now, had Jackson known, that this property was owned by different persons, it would have been his duty to keep separate accounts of the pine and oak lumber. Then, it \tould have been ascertained what part of the money was received upon the joint account and what upon the separate account; what debts were lost upon one, and what upon the other'. These facts are not, and probably cannot now be, ascertained ; and this may justly be ascribed to the neglect of Green in not giving this information.

Until, then, Green shall shew, that the moneys received from Jackson, were received from the sales of his own lumber, it is fair to infer, that they were the avails of the joint concern. Paley on Agency, 47. As he has thus put it out of the plaintiffs’ power to ascertain the facts, it is perfectly reasonable, that they should be taken against him ; but as the committee have not found whether the full amount of the pine lumber was received before the compromise, it is necessary to look to the effect of that compromise. The lumber of the this sells and Green was principally sold in the year 1817, or before.

Green sent it in his own name, and kept the account in his own name. A settlement was not effected until almost five years had elapsed. He then took notes in his own name, and a deed of land in his own name. Is it not a fair presumption, that he considered himself accountable to the other owners 1 But he declared, that he took the land for their benefit, as well as his, and took the deed in his own name, for the greater convenience in transacting the business. Had he a legal right to do this ?

I will not say, that in the intercourse of business, an emergency might not arise, where no time could be allowed to consult with those interested, and no other property could be had, but that a person, under peculiar circumstances, might make a compromise of a claim of this sort, which a court of equity would sanction.

But where no sudden emergency requires it; where there is ample opportunity to consult those interested, and it is omitted ; and especially, where a compromise is made, by taking notes and deeds in his own name only ; it would be unsafe to hold such a transaction to be obligatory upon persons in no other manner parties to it. And although, in this case, Green has conducted with perfect good faith, yet the precedent sought to be established, would serve as a cover for those, who, with the same opportunity, but with less integrity, should seek to advance their own interests at the expense of others.

It is analogous to the case of a trustee, who buys in the trust property ; which has often been hold-en to be invalid, although done from the best motives, on ac count of the danger of fraud. It was hinted, that by accepting the 84 dollars, the plaintiffs had ratified this transaction. But when we look at the facts, it is found, that Green offered them 84 dollars and a conveyance of part of the land ; and when they refused to receive the land, and refused to receive the 84 dollars in full, it is perfectly apparent, that it was not his expectation nor their intention, that the 84 dollars should be in full.

And there is no rule of law construing

an act of this kind, coupled with an express refusal to accept it in full, into an agreement to receive it in full, or a ratification of the act expressly refused to be ratified. Green, then, having received moneys, to a considerable amount, for the pine lumber, and lands to his satisfaction for the balance, is bound to account with the plaintiffs for the avails of that lumber; the balance of which the committee have found| to be 458 dollars, 35 cents. This sum the plaintiffs are entitled to recover. The committee recommend, if this principle is adopted, that interest be allowed from the 1st of January, 1819.

As it appears, that most of the pine lumber was sold in 1817 ; as great delay has intervened ; and as this delay is not satisfactorily accounted for; I should think it proper, that interest should be allowed; and would advise the superior court to accept the report of the committee, and grant the prayer of the biU, and allow the plaintiffs the sum of 458 dollars, 35 cents, with interest from the ■ 1st of January, 1819. The other Judges were of the same opinion, except Peters, J., who was absent, Judgment for plaintiffs,