
    Samuel Lane vs. E. L. Roche.
    This cause came up, originally, before Chancellor HaRI’ek, upon demurrer and exceptions ; and for the proper understanding of the decree, it is deemed unnecessary to copy any other than the eleventh exception, which is as follows :
    “ Because said defendant hath not set forth, whether said credits and claims, as stated in said bill ofcomplainant, are correct or incorrect ; nor to what extent, correct or incorrect; nor whether defendant hath in his possession, the books and vouchers of said complainant, as set forth in said bill, as well as defendant’s own books of account, during the continuance of said complainant in the said business, nor the amount, or probable amount, of said business, during thatjperiod ; nor whether said defendant is willing to produce his said books of account, so as to enable said complainant to ascertain the sum due to him by said defendant j nor whether any of said hooks of accounts, or vouchers, have been destroyed, injured, or altered, by said defendant, as apprehended by said complainant; nor whether the said defendant is still proceeding with his suit-at law against said complainant, for styd pretended balance, so set up against said complainant.”
    
      The following decree was pronounced by Chancellor H'Aitrnii ¡
    Tlie first ground of demurrer makes the question, whether it is' sufficiently charged by the bill, that a partnership was actually formed, by a parol contract, between the complainant and defendants or only an agreement for a future partnership, which was never carried into execution, if only the latter, it is clear that the re. medy of the complainant is at law, to recover damages for the refusal to carry the agreement into execution. From the argumeutive and indirect manner of the bill, it is somewhat difficult to say, with precision, what is, or what is not, charged. But from the best view which 1 can take of it, it seems to mo that the actual execution of a partnership agreement is not charged. The bill states, that defendant induced the brother of complainant, to persuade him to the formation of a copartnership with him.” That it was understood by all parties, to be an agreement to unite in business,! for the space of three years, &c. This might seem equivocal, but the bill goes on to state, that on complainant’s arrival in Charleston, defendant assured him that every thing should be arranged to his satisfaction, as he would find by the articles of agreement,which should be immediately drawn up. This shews, clearly, that both parties contemplated written articles to the formation of the partnership. The bill goes on to speak of complainant’s dissatisfaction at the delay in preparing the articles ; and when, at last, they were presented to him, postponing the commencement of the partnership for six months, and providing for the employing of complainant, as foreman, in the meantime, complainaut states, that he determined to return to New York, but was dissuaded by defendant’s agent, who said he believed that full justice would be done by defendant, on his return ; and complainant accordingly entered on the business, and continued to discharge it until defendant’s return,- This, I can only interpret as an acquiescence on the part of complainant to go on, not regarding himself as a partner, but taking the risk of defendant's consenting, on his return,to reform the articles according to what complainant believed the true understanding of them. All this is unmeaning, if a partner, ship agreement were already executed. For these reasons, I think tlie demurrer, on this ground, must be sustained.
    With respect to second cause of demurrer, to so much of the bill as seeks to render the defendant liable for services rendered, it struck me at first, that as complainant’s compensation for services, as foreman, were to be one third of the net profits of the concern, he might have a right to an account, for the purpose of ascertaining, those profits, and relief, upon that account, But the articles, providing for this compensation, were never executed, he refused to-execute them, and stated explicitly, that there never was any agree-ment to employ him, as foreman. If he, therefore, rendered any services in that character, he can only claim compensation for them on the footing of a quantum meruit, for which, the remedy is at law. The demurrer must, therefore, be sustained on both grounds.
    The defendant, in his answer, submits, that all the matters con--taiued in the bill, may be determined at law, aud prays that he may have the same benefit, as if he had demurred to the whole bill. But such is not the rule of equity ; there may be a demurrer to one patt of a bill, and an answer to another part; but so far as the defendant undertakes to answer, he must answer fully.
    In the case of North vs. Strafford, 3d Pr." Wms., there was a demurrer to so much of the bill as prayed for relief, which was sustained on the ground, that the remedy was at law ; but so far as concerned discovery, the chancellor said the plaintiff was at liberty to except, if he thought the defendant had not fully answered any part. That case is the same with this ; and if the .present defendant has failed to answer, fully, any material part of the bill, which is not demurred to, the exception to the answer must be sustained. This brings me to examine the complainant’s exceptions. The four first may be considered together, as they relate to the same matter: — the setting forth the terms on which it was agreed to form the partnership. It seems to me that the answer is defec. five in this respect. The bill charges certain specific terms on which it was agreed to form the partnership. There is no distinct answer to this ; but defendant states, that the details had not been agreed on, and that the written articles contain the only stipulations to which the defendant would agree, or ever intended to agree. This seems evasive, and the exceptions are, therefore, sustained. With respect to the fifth exception, though mention is made in the bill of complainant’s letters, nothing specific is charged of their contents, nor is the defendant called upon to produce them. So much of the exception is, therefore, overruled. There is a specific charge, however, that defendant, by one of his letters, represented the profits of his business to be fourteen thousand five hundred do!Jars, and though, perhaps, not very material, yet I suppose the complainant is entitled to an answer. So much of the exception is sustained. The sixth exception is frivolous, and is overruled • and, indeed, of all the exceptions, it may be said, that from their verbose, diffuse, and inartificial manner, it is very difficult to see their precise object, or to decide upon them. All the rest, except the last, seem to relate to immaterial matters, or to be sufficiently answered, or to relate to matters involved in those already decided. With respect to matters of the eleventh and last exception, the answer seems clearly to be defective, and that exception, therefore, sustained.
    
    WILLIAM HARPER.
    After this decree was rendered, a further answer was filed by de. fendant on 30th May, 1836, in which he stated that he had agreed with the complainant, that, if after a trial of six months, he approved his conduct, he would take him into business, under the restrictions set forth in the written articles, and that these written articles contain the whole, and only mutual understanding. In answer to that part of the bill, which relates to the books, defendant answers that all the books of his shop, during the period complainant worked in his shop, are now in his possession, and he denies, that he has ever had any books or vouchers, belonging to complainant. That the books, specifically mentioned in the bill, are the defendant’s private books, - and that there are no papers, vouchers, or receipts, in-defendant’s possession, belonging to complainant, except two or three receipts, for money paid R. W. Seymour. Defendant de. nies, that he owes complainant any thing for wages.
    The cause catne on for hearing, before Chancellor D. Johnson, in June, 1836, when the complainant offered evidence to contradict the answer on all the material points ; but the chancellor refused to receive it, and dismissed the bill with costs.
    From this decree, the defendant gave notice of appeal, upon the' following grounds :
    1. That although the demurrers of the defendant were sustained by Chancellor Harper, in bis decree, there were parts of the bill that were not demurred to ; and the bill, itself, not having been dismissed, defendant was required to answer to- the matters contained in the 1st, 2d, 3d, 4th, and 5th, exceptions ; and, also, to the lltlr exception.
    2. That the testimony taken by order of Chancellor Desaussüre, and by consent of the defendant’s solicitor, should have been read, to contradict, as it did, defendant’s answer, and amended answer, and relief, should have been granted.
    3. That defendant and complainant being at issue upon most of the points to which defendant did answer, the chancellor should have heard complainant’s witnesses, and decided upon the case made.
    LEWIS CRUGER, Complainants Solicitor.
    
   Chancellor Harper

delivered the opinion of the court.

We do not perceive any thing which will authorize us to remand the cause, or vary the decree. The first ground was not urged. It appears that the- defendant has answered as to the matters for which his former answer was excep'ted to. The chancellor states, that books and documents were produced in court, and no motion was made for their being deposited with the master, so as to be used on the trial at law.

As to the second and third grounds, we have no means of knowing what testimony was offered, or with what view, and the chancellor seems to have been equally at a loss, at the hearing. He states his impression to have been, that evidence was offered generally, with a view to the trial of the cause before him, and obtaining a decree on its merits, notwithstanding the sustaining of the demurrer, which turned the cause out of court, for every purpose but that of discovery.

The decree is affirmed.

WILLIAM HARPER.

Memminger, for motion.

Hunt, contra.

Filed 21st March, 1837.

We concur,

DAVID JOHNSON,

J. JOHNSTON.  