McClung v. Capehart

As the facts are found by the court below, the parties were copartners in business as attorneys and counselors at law, for a period ending March, 1860, when the partnership was by mutual consent dissolved. After the dissolution, the defendant collected and received various sums of money belonging to the firm, the last of which was received by him in October, 1863. There never was any accounting or settlement .between the partners. The plaintiff demanded *19such accounting and settlement in 1868, and defendant refused.

This suit was brought in October, 1871, for an accounting and settlement, and for the recovery of such amount as might be found due the plaintiff. The defendant pleaded, as one •defence, the statute of limitations, awkwardly, it is true, but sufficiently to show that he relied on it as a defence, and this plea raises the only question necessary to consider.

The statute of limitations (Gen. St. c. 66, title 2) applies to all civil actions, whether of a legal or equitable nature, falling within any of the classes mentioned in it. An action for an accounting between partners comes under the first subdivision of section 6 of the chapter specifying those actions which are barred within six years — “an action upon a contract or other obligation, express or implied.” The fact that a contract creates a relation in the nature of a trust, or that the action to enforce the obligations growing out of such contract is of an equitable nature, does not remove the cause of action from the operation of the statute. It is doubtful if there be any cause of action against the trustee in an express trust (though we do not undertake to decide the question) which does not come within this clause, except where relief is sought on the ground of fraud.

Those decisions which hold that the statute does not apply to such actions, were upon statutes which did not in terms include suits of purely equitable cognizance. Ours, however, includes all “civil actions,” of the classes described, whether -of a legal or equitable nature. Ozmun v. Reynolds, 11 Minn. 341 (459.)

The action between partners for an accounting and settlement of their affairs is within the clause quoted, and is barred in six years from the time the cause of action accrued. Such an action may be brought as soon as the partnership is dissolved, although there may be firm assets undisposed of, and debts due to and from the partnership. Where, after the dissolution, the partners continue closing the business, reeeiv*20ing and disbursing moneys, a cause of action for an accounting of all tbeir transactions accrues at the date of the last item in such transactions, and the statute then begins to run. No demand is necessary before bringing the action.

Judgment reversed.