
    Silas W. Robbins v. Thomas Laswell.
    
      Interest—whether recoverable. Where, upon the termination of a partnership, one of the partners improperly converted the remaining property of the firm to his own use, his conduct in so doing, being under the circumstances very censurable, and he contesting the right of ins co-partner to recover any amount from him on account of the partnership, upon a bill filed to state the account between them, it was held, that such partner should be charged with interest Upon the amount found to be due his co-partner, from the termination of the partnership.
    Writ of Error to the Circuit Court of Sangamon county; the Hon. Edward Y. Rice, Judge, presiding.
    Messrs. J. C. & C. L. Conkling, for the plaintiff in error.
    Messrs. Stuart, Edwards & Brown, for the defendant in error.
   Mr. Chief. Justice Laavrence

delivered the opinion of the Court:

This case has been already twice in this court, and will be found reported, in 27 Ill. 367, and 39 ib. 209. The main questions have been settled, and the case now comes before us merely upon exceptions to the master’s statement of the account. It was before us at the last term upon these exceptions, and we then partially restated the account, but committed an error in our statement, and having granted a rehearing, the case is again before us. We are still of opinion the master did not allow the complainant as large a balance as was his due, but the error is not so great as we supposed at the last term.

One error in the master’s statement is this : “It is admitted that Laswell, when the partnership came to a sudden termination in April, 1866, drove off and converted partnership stock which had been paid for by Robbins, amounting to $547.00. ” The figures, as stated by Laswell’s counsel in their argument at the last term, are,

For the Rippon Stock $395 00

“ “ Day • 95 00

“ “ Broad well “ 70 00

“ “ Olaywell “ 87 00

Total $547 00

The master,in stating the advances made by Robbins, allows him these sums, and thus far is correct. But when he undertakes to arrive at the profits of the entire business, he ignores this sum of $547.00. He states the amount of sales and then deducts the sum total of advances by both Robbins and Laswell, which would, of course, have been correct, if all the stock had been sold. But instead of selling all the stock, Laswell improperly drove off and converted a part of it to his own use, and for the purpose of ascertaining the profits of the partnership this stock should he added to the gross sales. If we could determine from the evidence the value of the partnership stock, thus driven off, it would be proper to add such value to the sales; but not being able to determine the value, we must content ourselves with adding the cost. By this calculation, we shall find the net profits of the partnership to have been $1,546.66, which is undoubtedly within the true figures, as it is admitted they made over $1,200.00 on one sale, and it is not claimed they lost on any. Such, however, is the loose and conflicting character of the evidence, that we can not arrive at the profits any more definitely. We are not unmindful of the fact, that the master has given Robbins credit, in stating his account with the firm, for the money advanced by him in paying for the Rippon, Day and Broad-well stock, and in part for the Claywell stock, but this only re-imburses him one-half his outlay, since the account stated is with the firm and not with Laswell. In order to reimburse him the other half, it is necessary that the proceeds of the stock should go to the credit of the firm. It is not, however, necessary to notice the amount paid by Laswell for the Roll cattle, which were driven off by him, as,if he were first credited and then charged, the result would not be affected.

On the other hand, the master states the amount of sales at too large a sum, not counting the stock driven off by Laswell. He estimates them at $6,067.13, while Robbins himself testifies to only $5,829.13.

We are also of opinion, as we were at the last term, that the sum of $305.40 should have been allowed to Robbins for money advanced to Laswell to pay for oats, labor, wagon and other things used in carrying on the business. Under the arrangement between the parties these expenses should have been met by Laswell and should now be charged against him. This money was advanced in the partnership business and should be included in the statement of the account. In the re-argument at the present term, counsel for the defendant in error have confounded this item with that referred to in the second exception to the master’s report, which is an error. The item referred to in that exception was allowed by the master, and properly.

We are also of opinion, as stated at the last term, that interest should be charged against Laswell on the balance due, from the termination of the partnership. His conduct in driving off the stock, as formerly intimated by the court, was very censurable, and from that time to the present he has contested the right of Robbins to recover any amount whatever.

The account between these parties should be stated as follows:

Advances of Robbins allowed by master - - - $8,749 02

Add deficiency in amount allowed for money paid

James and Thomas Claywell - 116 40

Total of Robbins’ advances - $8,865 42

Advanced by Laswell $964 05

Total of advances $4,829 47

Total of sales -" - - - - - - $5,829 IS

Add stock driven off by Laswell, estimating value at

cost paid by Robbins...... 547 00

Total of proceeds $6,376 13

Deduct total advances ......$4,829 47

Total profits $1,546 66

Robbins’ half of profits...... 773 33

Add Robbins’ advances...... 3,865 42

$4 638 75

Deduct Robbins’ receipts ...... 3,259 00

$1,379 75

Add advances by him to Laswell for labor, grain, &c 305 40

. Balance due Robbins from Laswell - - - $1,685 15

The circuit court will enter a decree for the above sum of $1,685.15 in favor of Robbins against Laswell, with interest at six per cent from April 20th, 1856, to the date of the decree, first setting aside any decree that may have been entered under the order of this court, made at the last term.

The decree is reversed and the cause remanded.

Decree reversed.  