
    Lewisburg.
    Patton’s ex’ors v. Calhoun’s ex’ors.
    
    (Absent Cabell, P. and Brooke, J.)
    
    1847. July Term.
    
    1. Under the circumstances, a surviving partner not allowed compensation for carrying on the business after the death of his partner, or for settling up the business of the concern.
    
      2. Ori/ERE’, if generally the surviving partner is entitled to compensation for settling up the business of the concern ? It would seem not.
    
      Calhoun & Patton were merchants and partners, doing business in the town of Fincastle, in the county of Botetourt. The capital of the concern was advanced by Calhoun, and Patton conducted the business. Calhoun died about the' 1st of June 1826, having by his will directed that the business of Calhoun & Patton should be continued for one year from his death, but that no new goods were to be purchased, except such groceries as should be deemed-necessary; and that at the end of the year, his executors should sell the goods then on hand.
    
      Patton continued the business for about eight months after the death of Calhoun, when the stock on hand was divided between himself and Calhoun’s executors; and he proceeded to settle up the concern, paying the debts due from the partnership out of its effects, and collecting or bonding the debts due to it. He survived Calhoun about five years.
    In 1835, Thomas Shanks, one of the executors of Patton, and James L. Woodville, one of the executors of Calhoun, made a settlement of the accounts between Calhoun Sf Patton, when Patton’s ex’or had paid in cash, and then transferred to Woodville, as the executor of Calhoun, bonds due the concern to the amount of 14,468 dollars 33 cents; leaving still due to Calhoun’s 
      ex’or, according to their settlement, the sum of 139 dollars 56 cents. For this amount of 14,468 dollars 33 cents, Woodville then executed his receipt to Shanks as executor of Patton ; and they agreed that if there was any error in their statement, it should be corrected.
    In Patton’s lifetime, he had purchased a house and lot in Pincastle, from Calhoun’s executors, for 1750 dollars, in three annual payments; and in February 1835, Patton’s ex’ors transferred to Woodville, bonds to the amount of 2168 dollars 41 cents, which ho was to collect and apply to the discharge of the purchase money due for the house and lot; and pay over the balance to Patton’s ex’ors.
    In January 1841, Patton’s ex’ors filed their bill in the Circuit Court of Botetourt, against Calhoun’s ex’ors, in which, after stating the above facts, they alleged that no allowance had been made, in the settlement between Shanks and Woodville, to Patton, for carrying on the business of Calhoun & Patton for eight months after Calhoun’s death, or for settling up the business; and they claimed compensation therefor. They charged; too, that there was a balance due from Woodville as executor of Calhoun, on account of the bonds assigned to him, to pay for the house and lot. And in excuse for not having brought their suit earlier, they alleged, that soon after the making of the settlement by Shanks and Woodville, the former presented to the latter the claim for compensation for carrying on the business for the eight months, and for closing up the business of the concern; and that Woodville asked for time to submit the claim to the persons interested in Calhoun’s estate; some of whom lived in Ireland. That the claim was repeatedly pressed upon Woodville, who postponed a final answer to it on the same ground, and promised that the delay should not prejudice the claim. That he had only a short time before refused to allow the claim; and the plaintiffs had immediately brought their suit to enforce it. They therefore prayed to be permitted to surcharge the account settled by Shanks and Woodville.
    
    
      Woodville answered the bill, and insisted that as a general rule, a surviving partner was not entitled to comPensa(aon ^01' settling up the business of the concera; and that in this case especially, Patton was not entitled to compensation, as Calhoun had put in all the capital, in consideration of which, Patton attended to the business: and that Calhoun, in his lifetime, took no part in the management of the concern; but lived on his farm, some ten or twelve miles from Fincastle.
    
    He said that as to the balance due on the bonds transferred in payment of the house and lot, he was always ready to account for that, and pay it over, after deducting his charges for collection.
    In the progress of the cause, the Court directed a commissioner to enquire what would be a reasonable compensation to Patton for carrying on the business for eight months, and for settling it up: and to settle the accounts between the parties. In execution of this order, the commissioner reported a special statement according to the views of the plaintiffs, which allowing to Patton 300 dollars for carrying on the business for eight months, and five per cent, on 14,600 dollars, the amount to which Calhoun's estate was entitled from the partnership, for bonding the debts, and allowing a credit for 261 dollars 50 cents, the balance of the bonds transferred to Woodville in payment of the house and lot, Calhoun's estate was made debtor to Patton in the sum of 1115 dollars 31 cents. The commissioner made another statement which, excluding the credits for compensation, reduced the amount due to Patton to 82 dollars 27 cents.
    The cause having been removed to the Circuit Court of Rockbridge, came on there to be heard in April 1845, when the Court held that the claim for compensation would have been inadmissible if it had been asserted at the proper time, and pursued with due diligence; and if a valid claim originally, it was, under the circumstances, not to be enforced after the delay which had occurred in presenting it. The bill, therefore, so far as it sought to surcharge the account settled by Shanks and Woodville, was dismissed. But the executors of Calhoun not objecting to a decree against them for the amount reported due by the second statement of the commissioner, which was produced by charging them with the balance of the bonds transferred to Woodville in payment of the house and lot, the Court gave the plaintiffs a decree for the sum of 82 dollars 27 cents with interest; but decreed the defendants their costs, to be paid by the plaintiffs out of the assets of their testator. From this decree, Patton's executors applied to this Court for an appeal, which ivas allowed.
    
      Cooke and F. T. Anderson, for the appellants.
    
      Michie and Fultz, for the appellees.
   By the Court.

Affirm the decree.  