Church v. Harter

The decision in the first action turned upon the very narrow issue of whether the acts as found constituted a technical partnership between plaintiff and defendant’s intestate. No other issue was presented. No attempt was made to determine whether there was some arrangement between the parties which entitled plaintiff to an accounting, even if that arrangement did not 'constitute a technical copartnership but constituted some such relation as that of master and servant, landlord and tenant, principal and agent, or something of that sort.

The present action proceeds upon a much broader theory than the first. The record in the first case is not before us and it is impossible to determine whether the issue which was actually determined was properly decided, or whether there was evidence which would have warranted a decision on the merits as to whether plaintiff was entitled to an accounting on the broad ground that the relation of the parties was such as would entitle her to such relief, even if a technical partnership did not exist between her and *476defendant’s intestate. When that action gets before us, if it is ever argued, these questions can be determined. We think that under the circumstances disclosed by this record it cannot be said that the first action is a bar to the present one.

All concur.

Order affirmed, with ten dollars costs and disbursements.