Dickinson's Appeal from Probate. we consider them immaterial. The court, in its finding and judgment, takes notice only of the decree accepting and allowing the administration account, and after specifying what items are to be rejected in that account, it is found that said decree is confirmed and established in all other respects." The other decrees appealed from, namely, the order of distribution, and the appointment, doings and return of the distributors, are not referred to at all in this connection. But as an appeal from probate does not of itself vacate the decrees appealed from, they remain in full force until the appellate tribunal otherwise determines; but the probate court ought properly to be advised as to the action of the higher court in respect to all the decrees appealed from, although a judgment by the Superior Court affirming them is not strictly necessary. In this case the only objection to the decrees respecting the distribution (other than the amount to be distributed,) was that the distribution already made by the parties would render any further distribution by the probate court illegal and void, and when that objection was overruled it was obvious that the Superior Court intended to affirm the distribution in all respects, except as it was incidentally affected by increasing the amount to be distributed, and, as that was found too small rather than too large, it may stand as so far good. The finding of the court may be criticised in another respect. The record shows a departure from the issue raised by the answer to the sixth reason of appeal. The answer admitted a verbal agreement to divide the personal property (except some articles not appraised,) and also the real estate, and that deeds were drawn and executed by all the heirs to consummate the agreement as to the real estate which were never delivered or exchanged, and that in consequence of certain acts in violation of the agreement by the appellants appellees refused to carry the agreement into effect. the But upon the trial, when the appellants offered evidence to prove the alleged agreement, the appellees objected, upon the the ground, in substance, that as there was no pretence that agreement was made and executed in the manner pre Bishop v. Bishop. scribed by the statute the evidence was not admissible. The counsel for the appellants, instead of claiming the evidence as admissible to prove the issue, claimed it upon the sole ground that under the equity powers of the court of probate the agreement, if proved, would supersede any other distribution. If the appellant had then claimed the evidence because it would tend to prove the issue raised by the pleadings, there might have been an amendment to avoid the question. Under the circumstances we think the appellant waived his right (if any he had) to stand on the form of the pleadings. The court very naturally decided the. question which the counsel submitted, and we do not think that the party should now be allowed to claim that the ruling of the court in rejecting the evidence was erroneous merely on account of the form of the issue raised by the pleadings. For these reasons we conclude that there was no error in the judgment complained of. In this opinion the other judges concurred. 54 232 68 457 54 232 69 707 RICHARD L. BISHOP vs. ELISHA C. BISHOP. New Haven County, June T., 1886. PARK, C. J., CARPENTER, Pardee, A payment by a partner on the partnership account in the regular course of the partnership business, can not be made the ground of a legal claim against his co-partner before the partnership accounts are settled. B was a member and managing agent of a co-partnership which received on storage a quantity of oil belonging to C, which he afterwards sold and divided the proceeds among the partners. C then brought suit against the company for the value of the oil, making service only on the partners within the jurisdiction, and obtained a large judgment. B effected a compromise of the claim, and with the consent of all the partners paid the amount agreed and charged it in his private account against the company. Held that his claim stood Bishop v. Bishop. on the same ground with any other claim of a partner for money advanced for the firm, and was governed by the above principle. [Argued June 2d—decided July 27th, 1886.] ACTION for an account and for the recovery of the amount found due; brought to the Superior Court in New Haven County. The only question in the case arose upon an item claimed by the defendant in his account. Facts found and case reserved for advice. The facts are suffi ciently stated in the opinion. W. L. Bennett, for the plaintiff. L. Harrison, with whom was E. Zacher, for the defendant. PARK, C. J. The controversy in this case presents the question whether a sum of money, paid by one partner in the due course of partnership business, can be made the basis of a legal claim for contribution against his co-partner, before the accounts of the partnership are settled. The facts upon which the question arises are substantially as follows:-The plaintiff and defendant in this suit, together with certain other parties, were the owners of an oil producing farm in the state of Pennsylvania, called the Foster Farm, and were partners in carrying on the business of the farm, under the firm name of the Foster Farm Oil Company. The business consisted in procuring oil from the oil wells on the farm, and in storing and selling it. The defendant was the superintendent and managing agent of the company, and as such agent made an arrangement with one Bronson, who was a lessee of one of the oil wells on the farm, and who was working it for his own benefit, to store his oil in one of the company's tanks on the farm. Bronson stored a large quantity of his oil in the tank. The defendant, acting for the company, sold Bronson's oil, and divided the proceeds among the members of the company in proportion to their interest in the company and farm. Bronson afterwards brought a suit for the value of his oil Bishop v. Bishop. against the company, describing them as partners doing business under the firm name of the Foster Farm Oil Company, and had service of the process made upon such members of the company as were within the jurisdiction of the court, including the plaintiff and defendant in this suit. He obtained judgment against the company for a large amount; which the defendant, with the knowledge and consent of all the members of the firm, afterwards succeeded in compromising for the sum of eight thousand dollars and some. costs. Of this amount one of the members of the firm paid the sum of $2,500 and the defendant paid the balance, and the latter now brings one half of the sum paid by him, namely, the sum of $2,818.75, into his account against the plaintiff in this suit. No settlement of the accounts of the partnership of the Foster Farm Oil Company has ever been made. These are the principal facts regarding the Bronson judgment; and we think the defendant is not entitled to recover of the plaintiff in this suit one half or any part of the sum paid by him to settle that judgment. The law governing the matter is well settled. In Mickle v. Peet, 43 Conn., 65, the marginal note is as follows:-"Until the affairs of the partnership are settled, its assets disposed of, and the avails applied to the payment of all demands against it, it cannot be known what balance will be due from the partnership to any partner. When this balance is ascertained, then, and not before, the law implies a promise on the part of the other partner to pay his proportion of it." The cases of White v. Harlow, 5 Gray, 463; Harris v. Harris, 39 N. Hamp., 45; Ordiorne v. Woodman, id., 541; Dowling v. Clark, 13 R. Isl., 134; and Arnold v. Arnold, 90 N. York, 580, are to the same effect. The reasons why one partner is not entitled to contribution in regard to some item in the partnership account favorable to himself, before the affairs of the partnership are settled, are numerous and cogent. In addition to other reasons that might be given, it is obvious that if one partner may do this in regard to an item favorable to himself, Bishop v. Bishop. so may another partner in regard to an item favorable to himself, and there might be an interminable litigation over the account, and at last all the partners might be compelled to refund the money thus obtained in the final settlement of the partnership accounts; for until then, in the language of our court, it cannot be known whether such. partners do not owe the company, notwithstanding the money paid by them on partnership account. So in this case, it is manifest that until the accounts of the Foster Farm Oil Company are settled, it cannot be known whether the defendant does not owe the company, notwithstanding the money paid by him to settle the Bronson judgment. Again. This suit was brought to settle the affairs of a partnership between the plaintiff and the defendant alone, and was not brought to settle the accounts of the Foster Farm Oil Company. That company included other partners besides the parties to this suit. It is clear therefore that no item of that account can be considered in this case, even in connection with the agreement of the parties made on the trial that all accounts between them, whether they pertained to the partnership then under consideration or otherwise, should be considered and settled by the committee. Indeed, both parties to the agreement then claimed that the affairs of the Foster Farm Oil Company could not be gone into in this suit; and surely the defendant cannot now be permitted to claim the contrary, even if there was ground otherwise for the claim. The defendant claims that the payment by him to settle the Bronson judgment was not a partnership transaction, and consequently it is not properly an item in the partnership accounts of the Foster Farm Oil Company, but is separate and distinct therefrom. We think there is no foundation for this claim. The defendant, as managing agent of the company, sold the Bronson oil, and divided the proceeds of the sale among the members of the company. The Bronson suit and judgment were against the company, on the ground that the company was liable. The defendant, act |