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third of the capital of said copartnership; , and discharge all debts of said firm, as well should each contribute their time, labor, and as to raise and pay plaintiff the sum of $175, services in conducting said business; and which the parties at said dissolution agreed were to share by thirds in profits and losses, to pay plaintiff out of proceeds of sale there

(3) That plaintiff contributed, in all, of, as well as to pay plaintiff out of bills rein money, to the capital of said partnership, ceivable, and which were held by them as the sum of fourteen hundred dollars; de- a special trust fund out of which to pay fendants contributed each about twelve hun- him one third of all sums so to be collected dred dollars. (4) That, in order to carry by them and all debts of said firm. (7) out the purposes of said copartnership, it be- That, at an attempt at an accounting made came and was necessary for the plaintiff and at the time of dissolution, it was estimated defendants to erect, build, and construct, on that the firm were the owners of goods, the lands hereinafter described, which lands wares, and merchandise of the value of $4,were then and now open, unoccupied lands, 305.64; that there were bills receivable of belonging to the United States, store build- the nominal or real value of about $3,834.45; ings and other houses thereon; that they that the buildings belonging to said firm did erect, build, and construct on said lands were worth about $2,500. (8) That thereupone store building, one saloon building, one on plaintiff retired from said firm, upon the barn and kitchen, and other outbuildings, consideration hereinbefore mentioned and with their joint labor and money; that said hereinafter stated, the defendants agreeing buildings are of a value of about two thou to use the goods, wares, and merchandise, sand five hundred dollars; that as soon as as well as the bills receivable, as a special the said buildings were completed they be- fund in trust to pay off, out of all moneys gan business therein. (5) That said builů- derived or to be derived therefrom, all debts ings were built upon, as plaintiff is informed of said firm, and to pay off the plaintiff's and believes, and on said information and $175, above mentioned, and also one-third of belief so states the fact to be, the S. E. 14 | all amounts received from collections made of the N. W. 14 of section 19, township 31 from bills receivable to plaintiff. (9) That south, of range 64 west, of 6th principal me defendants have not paid plaintiff the sum ridian, in Las Animas county, Colorado, or or $175 out of proceeds of sales of the goods, upon the N. E. 44 of N. W. 14, sec. 19, afore- wares, and merchandise, as agreed to be said; that at the time of beginning the erec- done, or in any other manner whatever, or tion of said buildings, and up to the day of any part thereof, although they have sold in the dissolution of said firm, defendants and due course of business, as plaintiff is inplaintiff were in the occupancy, use, and formed and believes, and on such informapossession of said premises as tenants in tion and belief states the facts to be, a common of each and all of said buildings, larger part if not all the goods, wares, and and were the owners thereof; that, after merchandise, realizing large sums of money the dissolution of said firm, the defendants therefrom in cash; that defendants have in have been in the occupancy, use, and pos- all paid plaintiff, out of money collected session thereof, as co-owners and tenants in from bills receivable, only the sum of $450, common thereof, with plaintiff, occupying although of the $3,834.45 of bills receivable the same under an agreement, then and plaintiff is informed and believes, and on there made, to pay plaintiff, as rent for his such information and belief states the fact one-third interest in said buildings and to be, that they have collected a large amount premises, ten dollars per month as rents thereof, amounting in all to the sum of $3,thereof; that plaintiff and defendants still000; that no other part of said bills receivown said buildings as copartnership prop- able so collected by defendants has been erty, together with the possessory right to paid to plaintiff, except the said sum of the lands upon which they are situated; that $150; that all the balance thereof is due they have never divided or separated their and unpaid; that of the debts and bills payinterest therein, and the same is undivided able by said firm, amounting to $1,429.92, partnership property. (6) That on or about plaintiff is unable to state whether any or the 1st day of August, 1891, the parties all of said debts have been paid, or whether plaintiff and defendants, by consent, dis- the same have been otherwise discharged by solved the partnership above mentioned, so defendants; that of the rents agreed to be far as the goods, wares, and mercbandise paid plaintiff for his undivided one-third belong thereto, and so far as the bills re- interest in the buildings aforesaid, of $10 ceivable and debts of said firm, was con- per month, no part thereof has been paid; cerned, under a special agreement then that there is due plaintiff therefor $10 per made; that defendants were to take the month from date of dissolution of said firm. goods, wares, and merchandise and bills re- (10) Plaintiff further says that defendants ceivable, and to use the same as a special utterly decline to state any account of sales fund, for the purpose, of paying off and dis- of goods, wares, and merchandise made by charging all the debts of said firm, and that them, and utterly refuse to state any acthey were also to hold and use said goods, count of moneys received from collections wares, and merchandise and bills receivable from bills receivable due said late firm; that as a special fund in trust to pay off, satisfy, I they deny plaintiff any access to the books

to.

of said firm, so as to enable him to deter- , conclusions, but not fortified by authorities in mine how much of the debts of the late firm support of the judgment, except as sustainthey have paid off, if any, and also to enable ing the following proposition: “A complaint plaintiff to determine how much and what against two, which shows a liability partly part of bills receivable they have collected, joint and partly several, is fatally defective;" if any; that defendants deny plaintiff's own- and several authorities are cited, which i ership of one third undivided interest in the have carefully examined, and I am at a loss buildings aforesaid mentioned, or any part to understand their application in this case. thereof, and wholly refuse to pay plaintiff Section 70 of the Civil Code, cited and relied any rent therefor, or to agree to any sale upon, is: “The plaintiff may unite several or division thereof, or the proceeds thereof. causes of action in the same complaint, when Wherefore plaintiff prays judgment: (1) they all arise out of any one of the following That his right to a one-third undivided in- named classes: provided, they affect all of terest in and to the buildings aforesaid, and the same parties, both plaintiff and defendthe possessory rights of plaintiff and de- ant, and affect them in the same character fendants in said buildings, and the grounds and capacity; and provided, they do not reupon which they stand, may be established, quire different places of trial, to wit." After and for a sale and partition thereof, or the enumerating many causes of action that may proceeds thereof, between the parties there be joined, at the close of the last paragraph

(2) For the sum of $100 rents due for of the section it is said: “And in all cases use and occupation of said buildings, or $10 | it shall be necessary to state separately in the per month since the dissolution of said firm. complaint the different causes for which the (3) For the sum of $175, due as aforesaid, | action was brought and in all cases equitable for a lien on any goods, wares, and mer- relief may be granted.” By the first section chandise of said late firm now remaining of the Code, the distinction between actions (4) For judgment for one-third of any sum at law and suits in equity is abolished, and found due plaintiff, or any accounting of only one form of action allowed, “which collections made by defendants of bills re- shall be the same at law and in equity." Conceivable due said late firm. (5) For judg. trary to the spirit and intention of the Civil ment for an accounting, between the parties Code, and the construction it has so often rehereto, of all matters in controversy. (6) ceived in this and other states, the contention For a decree of this court enforcing plain- of defendants' counsel is that the suit should tiff's and creditors' rights, if any, to the have been split up into suits at equity and acgoods, wares, and merchandise, and bills re- tions at law, some of which should have ceivable, or to the proceeds thereof, in de been against both defendants jointly and some fendants' hands, or for judgment for any against them individually. The complaint is, amount due plaintiff. For such other, fur- perhaps, in some respects, rather inartificially ther, and general relief as may be according drawn, but the demurrer is not so drawn as to equity and good conscience or according to reach the technical objections that appear to law."

upon the face. It clearly appears from the The following is a copy of the demurrer filed: complaint that the plaintiff and defendants "First. He seeks to partition certain prem- had been equal partners in some kind of merises described in said complaint between the cantile business; that each had contributed plaintiff and the defendants, upon the ground a portion of the capital; that, for the purpose the said real estate is copartnership prop- of carrying on the partnership business, the erty, when it is alleged in said complaint firm entered upon public lands of the United that said copartnership was dissolved, and States, and erected buildings and made imthat an accounting had been taken between provements of the value of $2,500); that on the the plaintiff and defendants, and it is al. 1st of August, 1891, the plaintiff withdrew leged in said complaint that a copartnership from the firm; that an estimate was made of no longer exists, nor is there grounds upon assets and liabilities of the firm, in addition which an accounting can be had between to the buildings and improvements above the plaintiff and defendants. Secondly. The mentioned; the stock of goods on hand was plaintiff seeks by his complaint to recover estimated at $1,305.81, bills receivable of the the sum of $175 upon an express promise by nominal value of $3,831.45; and that the debts the defendants in their individual capacity. of the firm amounted to $1.429.92; defendThirdly. The plaintiff seeks to recover the ants were to continue in business, and, upon sum of $10 per month for rent from the date plaintiff's withdrawal, took the entire stock of dissolution of said copartnership, upon of goods and bills receivable; remained in the the express promise of defendants to pay possession and occupation of the buildings; said

Wherefore defendants allege were to pay the entire indebtedness of the that all of said causes have been improperly | firm; to pay, from the sales or proceeds of joined in the cause of action set out in the goods, $175 to the plaintiff, and pay him onecomplaint of plaintiff.”

third of all moneys collected from bills reIn the solution of the question presented we ceivable, and $10 per month rent for his oneget very little aid from the argument of coun- third of the buildings; that he had received sel for the defendants. It is an elaborate and from proceeds of bills receivable only $450, well-written presentation of their views and and nothing for rent. It does not appear that

sum.

any steps had been taken to secure a title not prejudice the case. Occurring in the from the government of the United States to prayer, it cannot be reached by the demurrer; the land upon which the buildings and im- the well-settled rule being that, if the mate. provements had been made; consequently rial allegations of the complaint are sufficient there was no title of land only by possession to confer jurisdiction, the special prayer may or occupation. Hence the buildings and im- be disregarded, and such relief granted as is provements were chattels as well as partner- proper under the facts shown. We conclude ship assets.

that the court erred in sustaining the deI see no good reason why the complaint may murrer and dismissing the suit. The judgnot be regarded as sufficient, under the facts ment will be reversed, and cause remanded stated, and to be a bill for discovery, account for further proceedings in accordance with ing, and the winding up of partnership affairs. the views here expressed. Reversed. That all matters pertaining to the settlement of partnership affairs are peculiarly and specially cognizable in a court of equity is too

(11 Wash. 134) well established to need authorities in its sup

BENN v. CHEHALIS COUNTY et al. port. The jurisdiction is exclusive in such (Supreme Court of Washington. Feb. 8, 1895.) affairs. Pom. Eq. Jur. § 1421. The with- ILLEGAL TAXATION-REMEDY BY INJUNCTION. drawal of a partner from a firm is not nec- The statute providing a remedy against essarily a full legal dissolution, and was not

excessive taxes by objections to the rendition of

a judgment therefor is not exclusive, and a taxsuch in this case as to relieve the defendants

payer on whose property an excessive assessfrom the mutual agency existing by reason of ment has been made may invoke the aid of the copartnership. They remained the agents equity to compel the tax officers to receive the or trustees to settle the partnership affairs,

sum legally due, and to restrain the collection

of any further sum. and account to the plaintiff, in conformity with their agreement. Failing to do so, plain- Appeal from superior court, Chehalis countiff is entitled to an accounting and a full set

ty; Mason Irwin, Judge. tlement of partnership affairs. Ketchum v.

Action by Samuel Benn against the county Durkee, Hoff. Ch. 538; Robb v. Stevens,

of Chehalis and others to restrain the collecClarke, Ch. 191; Kinsler v. McCants, 4 Rich. tion of taxes. Judgment for plaintiff on the Law, 46. Court and counsel appear to have pleadings, and defendants appeal. Affirmed. misapprehended the seventh paragraph of the Geo. D. Schofield, for appellants. Austin complaint, in regarding it as an allegation of E. Griffiths, for respondent. a statement and an account stated. The language is "that at an attempt at an account. HOYT, C. J. It was alleged in the coming, made at the time of the dissolution, it plaint in this action that the plaintiff was the was estimated,” etc. The language used is owner of several hundred lots or parcels of land perhaps unfortunate, but it is clear from it, situated in Chehalis county; that the same as well as the balance of the complaint,

had been listed on the tax rolls of said counthat there was, and could have been, no final ty for the year 1893, and had been valued settlement. The amount to be received by by the assessor without his having viewed the plaintiff depended upon too many contin- the same as required by the statute; that gencies, notably the amount that might be the valuation placed upon each of said pieces collected from bills receivable. Had there of property was double the actual value been, as supposed, a settlement in full, and thereof at the time to which such valuation a purchase of plaintiff's interest by the de- | related; that, by reason of such illegal valufendants, so that the action should have been ation, taxes had been assessed against the at law instead of equity, the amount must property aggregating the sum of $2,827.80, have been definitely fixed, payable absolute- and that if the same had been assessed at ly, and not dependent upon the outcome of its actual cash value the aggregate of taxes partnership assets. In the prayer for relief it thereon would have been only $1,47.52. In is asked that the court decree a partition of addition to these and other facts tending to the buildings and possessory rights to the show the illegality of the assessment and land, or that there be a sale of the same, and levy, there were the usual allegations of the proceeds divided. The latter course should tender of the amount rightfully due to the be pursued–First, from the fact, as shown, treasurer, and of a refusal by him to accept that the title to the land is only possessory, less than the amount shown by the tax roll. while the fee is in the government of the The prayer of the complaint was that the United States; second, although such inter- defendant the county treasurer should be ests are chattels real, having been bought or required to receive the said amount of $1,constructed with partnership money for the 447.52 in full payment for all taxes for said business of the firm, they can, legally, only year, upon the property described, and that be regarded as any other chattel interests per- he and the other defendants should be retaining to the partnership.-as business as- strained from proceeding to collect the taxes sets of the firm. Hence partition would not in accordance with the warrant attached to be correct or practicable. But such misap- the tax roll. To this complaint a demurret prehension on the part of counsel in regard was interposed on the part of all the defendto the real character of such property can- ants, which was overruled by the court. The defendants elected to stand upon their de facts stated therein, was within the jurismurrer, and refused to answer. Whereup- diction of a court of equity. Some objecon judgment was entered for plaintiff in ac- tions to the complaint for want of proper cordance with the prayer of his complaint. parties have been urged here, but, as they It is evident from what we have said that were not made in the lower court, they furthe facts stated in the complaint made it nish no reasons for reversal. The judg. clear that there had been no such assess- ment will be affirmed. ment of the property in question for taxation as the statute required, and that the SCOTT, DUNBAR, GORDON, and ANlevy of the taxes thereon shown by the tax DERS, JJ., concur. roll was illegal. That such would be the result of an assessment and levy made in the manner set out in the complaint is not de

(11 Wash. 212) nied by the appellants. They substantially

WASHINGTON CENT. IMP. CO. V. NEV. admit that, if the facts alleged in the com

LANDS. plaint were made to appear by way of ob

(Supreme Court of Washington. Feb. 16, jections to the rendition of a judgment

1895.) against the property for the taxes levied

VENDOR AND PURCHASER-ACTION FOR PRICEthereon, it would be the duty of the court

FALSE REPRESENTATIONS. to reduce the taxes to the sum of $1,447.52,

It is no defense to an action on notes girand interest thereon, and enter judgment for en under a contract to purchase land that de

fendant was induced to execute the contract by that amount, instead of for the amount as

the false representations of plaintiff that he sessed against the property. They, however,

was then making costly improvements on land seek to have the judgment reversed upon the adjacent to that covered by the contract. ground that the facts stated did not warrant

Appeal from superior court, King county; the interposition of a court of equity. Their

T. J. Humes, Judge. contention in that regard is that since the

Action by the Washington Central Imstatute has provided a remedy for excessive

provement Company against George Newtaxation, by allowing objections on that ac

lands on a contract for the purchase of land, count to be urged against a rendition of

and on notes given for the purchase price. judgment for the taxes, such remedy is ex

A demurrer to the answer was sustained, clusive, and deprives a taxpayer of other

and defendant appeals. Affirmed. remedies to which he would have been entitled but for such provision of the statute.

Bausman, Kelleher & Emory, for appellant. We are unable to agree with this contention.

Clise & King, for respondent. The result of its being sustained by the courts would be to leave the property of a DUNBAR, J. The respondent brought suit taxpayer for two years subject to an ap- against the appellant on a contract for the parent lien for taxes which, by reason of the purchase by him of certain lots, and upon his illegality of the assessment, did not in fact notes given for the purchase price. Newconstitute a lien. From the time the taxes lands, the appellant, admitted the making of are spread upon the tax roll until paid or the notes on the contract, and set up an af. set aside by a decree of court, they are a firmative defense, alleging deceit and false substantial cloud upon the title to the prop- representations. The essential allegations erty. Hence to compel a taxpayer to deal

of the affirmative defense were as follows: with his property subject to such cloud for "The note and contract hereinabove describtwo years, when by going into a court of ed were obtained of this defendant by plainequity the same substantial justice can be tiff by grossly reckless, erroneous, willful, done as upon objections to the rendition of and fraudulent representations on plaintiff's judgment for such taxes, is to impose a hard- part, in this: that the time when defendant ship which courts of equity are specially con- was induced to contract for the purchase of stituted to prevent. Upon the conceded

the lots above described, and sign the note, facts as to the assessment and taxation in plaintiff represented to him, with the intent question, it would be the duty of the court, so to induce him, that plaintiff and others when the county, at the end of two years, were building, and were causing to be built, asked for judgment for the taxes in question, on lots within sixty feet of those which de. upon objections by the owner of the prop- fendant was to buy, a substantial brick hoerty, to reduce the amount thereof, and pro- tel, to cost not less than $9,000; that this hovide for the collection only of such re- tel was to be finished forthwith; that commainder as, under all the circumstances, plete contracts had been made for its erecshould seem just. The result to the county tion; and that the work was already under would be the same as though its proper of- way. That, relying upon these representaficers were now equired to receive such sum tions, defendant entered into the contract. as would be just, and be thereafter prohibit- and signed the note above described, but ed from collecting the remainder; and, since neither plaintiff nor others were building, or that was the object sought by the plaintiff causing to be built, on lots within sixty feet in this action, the granting of the prayer of those purchased by defendant, or at all, of his complaint, upon the confession of the a substantial brick hotel, of any cost what. ever, nor have they done so since, nor were look, and, having understanding, refuse to there then, nor have there since been, any exercise it, they must not complain, when contracts, complete or at all, for the erection, they accept and act upon the representations nor was the work under way, nor has since of other people, if their venture does not been begun or put under way, nor was any prove successful. Written contracts would such structure or any at all to be finished become too unstable if courts were to annul forthwith at that time or since, but the rep- them on representations of this kind. We resentations made by plaintiff and all plain- think the proper and sensible rule was laid tiff's statements as above set forth were false, down by the United States supreme court in reckless, and erroneous." Then follow alle. Slaughter's Adm'r v. Gerson, 13 Wall. 379, gations of loss by reason of the fact that where it was held that the misrepresentathese representations were untrue. A de- tion which would vitiate a contract of sale, murrer was interposed to this affirmative de- and prevent a court of equity from aiding fense, wbich was sustained by the court. its enforcement, must relate to a material The appellant, relying upon his answer, re- matter constituting an inducement to the confused to plead further. Judgment was enter- tract, and respecting which the complaining ed, and the Cause brought here on appeal. party did not possess at hand the means of

We think there was no error committed knowledge. It was there held that it was by the court in sustaining the demurrer to not sufficient that it was a misrepresentathe answer in this case. The allegations of tion upon which he relied to his injury, but misrepresentations go beyond the land or the that he must have some excuse other than amount or character of the land sold, and negligence for relying upon it; that where relate to improvements which it is alleged the means of information are at hand, and were to have been made on some adjacent equally open to both parties, and no conceallands. The allegations of the answer, so far ment is made or attempted, the misrepreas fraud is concerned, are not strengthened sentation furnishes no ground for a court of by the expression “by grossly reckless, er- equity to refuse to enforce the contract of the roneous, willful, and fraudulent representa- parties; that the neglect of the purchaser to tions," etc. These are mere conclusions, and avail himself in all such cases of the means the fraud must be shown by specific acts of information, whether attributable to his which, as a matter of law, would constitute indolence or credulity, takes from him all fraud. Conceding that these representations just claim for relief. Under the rule there were false, and conceding that the purchaser established, and which we are inclined to relied upon them, there is not yet enough follow, the demurrer to the answer in this shown, it seems to us, in this answer, to give was rightfully sustained. The judg. the defendant relief. There is no fiduciary ment will therefore be affirmed. relation between the seller and the buyer alleged. It is not alleged that the buyer was HOYT, C. J., and SCOTT, ANDERS, and in such a position that he was unable to GORDON, JJ., concur. make an investigation concerning the truth or falsity of these alleged representations. So far as the allegations of the complaint

(11 Wash. 203) are concerned, there is nothing to show that the land was not at hand when this contract

LA FRANCE FIRE-ENGINE CO. v. TOWN

OF MT. VERNON. was made, and that it could not, by the use of ordinary prudence, have been investigat- (Supreme Court of Washington. Feb. 14, ed by the purchaser; and in cases of this

1895.) kind it seems to us that parties must exer

CLAIM AGAINST Towx-ALLOWANCE. cise ordinary business sense and the facul- 1. Where, on a former appeal of an action ties which are given to them for the purpose against a town for the price of a fire engine, it of transacting business, and that they cannot

was decided that the complaint stated a cause

of action on the original contract of sale, the call upon the law to stand in loco parentis

question whether the town bad authority to to them in the ordinary transactions of busi- execute the notes held by plaintiff, for the balness and their ordinary dealings with their ance of the price, is immaterial. fellow men. One of the allegations of this

2. The execution by a town of its note for

the price of a fire engine is a sufficient allowance answer is that plaintiff represented to de- of the claim therefor. fendant that this building was already in

Appeal from superior court, Skagit county; process of erection; that the work was al

Henry McBride, Judge. ready under way. The ascertainment of

Action by the La France Fire-Engine Comthis fact was easy, and there is no circumstance alleged to show that there was any

pany against the town of Mt. Vernon for the scheme worked upon this purchaser to pre

price of an engine sold to defendant. Judg

ment for plaintiff, and defendant appeals. vent him from making this examination, or

Affirmed. anything of that kind. The other fact al

For prior reports, see 37 Pac. 287, and 38 leged to have been represented, that a con

Pac. 80. tract had been let for the completion of this hotel, was also easily ascertainable.

J. Henry Smith, for appellant. Million & ple, having eyes, refuse to open them and Houser, for respondent.

case

If peo

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