Ingersoll v. Kirby

The answer of the defendant denies nothing except the general charge of combination and confederacy. The other parts of the bill, therefore, must be taken to be true. The answer does not deny that *69George Kirby was furnished, by his brother Zebulon, with -a stock of goods to commence business on in Detroit, and that the goods were, in part, taken from the store of Ingersoll and Kirby, and in part purchased with the money of the firm; or that Zebulon, at different times, caused large quantities of leather to be taken from the partnership store to George’s store, to be sold, or that these things were done without the knowledge or consent of complainant, and for the purpose of defrauding him. Nor does it deny that Zebulon is the real owner of the goods in George’s store. These allegations of the bill, and others, such as George’s knowledge of the nature of the several transactions, and that the store was carried on in his name as a cover to the frauds of his brother, in which George participated, are all admitted by the demurrer. A stronger case of fraud could not well be made out..

The other ground of the demurrer is, that the bill is multifarious. A complainant cannot demand several distinct things, having no connection with each other, of several defendants, by the same bill. But, when the matter in litigation is entire in itself, and does not consist of separate things having no connection with one another, it is not necessary that each defendant should have an interest in the suit co-extensive with the claim set up by the bill; he may have an interest in a part of the matter in litigation, instead of the whole. Fellows v. Fellows, 4 Cow. R. 682; Brinkerhoof v. Brown, 6 J. C. R. 139. The opinion of the Vice Chancellor in Salvidge v. Hyde, 5 Madd. R. 138.

The object of the bill is a discovery of the copartnership effects of Ingersoll and Kirby, and an account and settlement of the copartnership business between the partners. This is one entire matter, and George Kirby is made a party on the ground of fraud. He is charged with aiding and assisting Zebulon to defraud the complain*70ant, and, for that end, with having received and sold as his own, and with having in his possession, and claiming as his own, but in fact for Zebulon, certain property of the firm of Ingersoll & Kirby. The complainant is entitled to his proportion of this property, as well as the other property of the copartnership; and, charged as George is with fraudulently obtaining it through Zebulon, and holding it for him, the bill is not multifarious because it prays an account of other copartnership property, with which George has had nothing to do, and is in no way connected.

In Fellows v. Fellows, the appellant, and two others impleaded with him, held separate parts of the property in litigation, under different deeds made to them at different times by John Fellows, who was also a party, to defraud the respondents; and the bill was held to be not multifarious.

The decision of the Vice Chancellor in Salvidge v. Hyde, was reversed by the Lord Chancellor, who allowed the demurrer for multifariousness. 1 Jac. R. 151. (S. C. 4 Eng. Cond. Ch. R. 68.) But that case differs materially from the one now before the Court. The bill did not charge that the conveyance from Culliford, the executor and trustee, to Laying, who demurred, was made to defraud the complainants. The report of the case in Mad-dock, does not show it to have been a case of actual fraud, on the part of Culliford and Laying; and, on the argument before the Lord Chancellor, as appears by the report in 1st Jacob’s R., it was contended only, that the defendant Laying had entered into the contract under circumstances amounting, according to the case made by the bill, to a fraud. The Lord Chancellor, in his opinion, says, “If an executor, having a power to sell, agrees to sell to A. B., can a bill be filed against him, and also for a general administration of the estate? He may have made infinitely *71too good a bargain with the trustee to sell, one that the Court would not allow to stand, but that is no ground for making him a party to the general administration.” Such language would not have been appropriate, if the case had been one of actual fraud.

The bill prays an account against Zebulon of all moneys, &c. received by him as agent of the firm of Justus Ingersoll & Co. This, at first view, would seem to be a separate and distinct matter from the copartnership business of Ingersoll & Kirby, and to have no connection with it. Such would, undoubtedly, be the case, were it not for the agreement between complainant and Zebulon, when they entered into copartnership, that complainant should be credited with the amount of stock, debts, &c. belonging to the Detroit store, as capital put in the store by him. It is this agreement that forms the connecting link between the two. A settlement of the copartnership business cannot be made between the partners, without ascertaining the amount of capital put in by each; and, to do this, an account must be taken of the stock belonging to the Detroit store, at the time when it was merged in the firm of Ingersoll & Kirby. The agency and copartnership business are so blended together as to make it necessary to unite them in the bill. Both accounts must be taken, under the peculiar circumstances, to settle the copartnership business; and^ such being the case, the bill on that account is not multifarious. Lewis v. Edmund, 6 Sim. R. 251; (S. C. 9 Eng. Cond. Ch. R. 255.)

Demurrer overruled.