Page:The English Reports v1 1900.pdf/381

Stewart, another partner, also separately appealed from the decree, and on his part shewed, that respondent was fully apprised, and approved of all that had been done: And from 30th April, 1709, the date of the first partnership, to the beginning of November following, paid 734l. and appellant 786l. 11s. 9d. both which sums were by appellant remitted to Pillans, and that respondent in August, 1710, paid 199l. 4s. 10d. more, and appellant about that time had paid 706l. 12s. 9d. which sums were likewise remitted by appellant to Pillans on account of the fisheries, as was all other money paid by the partners; and that respondent in his bill further charged that an article in the indentures obliging him to submit to arbitrators before any suit commenced, was added without his privity; and this appellant, in like manner contended, that the decree was unjust, because there was no proof of any surprise or fraud, either in the said articles or execution thereof; and that it was a great hardship on him to be obliged to account for sums received on the partnership account, since he in pursuance of the articles paid those sums as well as his own proportion, to Pillans, who had upon oath acknowledged the receipt thereof; and was willing to come to an account on the foot of the partnership: And further, because respondent, was fully satisfied with all the transactions, and approved of them, and concurred in the directions given for carrying on the fishery from [446] time to time; and never called for any account till 1711, when he knew there had been considerable losses, to which appellant was equally liable: And finally, because respondent was privy to, and approved of the agreements made with Gordon and the others. (J. Jekyll. Spencer Cowper.)

The respondent, in answer to both appeals, stated; That he, in 1709, lived at St. Ives in Huntingdon; and Stewart and Pillans, being natives of Scotland, and then merchants in London, where Stewart then resided, entered into the partnership as stated by appellants; and that besides what appellants had shown, it was thereby covenanted that Pillan's should not concern himself in any private trade or dealing whatsoever in the fishery business, without the special license of all the parties, in writing under their hands, and should keep books, fairly enter all fish and merchandizes caught, bought or received in, or sold or delivered out, and the prices, debts, receipts, and payments, and yearly, between 1st November and 1st December, transmit to Stewart and Denn true copies of all his accompts, and all letters and invoices, and all other transactions relating to the fishery, and that the accompts should be balanced to the 1st November yearly; and that Mr. Bleau should be their book keeper during pleasure; and that the books of accompts, letters, accompts, bills of lading, and other writings relating to the fishery, should always be kept in London, at the house of Stewart or Denn, where Harknesse and Pillans might have free access, and peruse and copy them without interruption: And that none of the parties should sell or dispose of his share except by his last will, without the consent of the rest or two of them; and that the parties should meet once a year, between 1st December and 1st January, at Stewart's or Denn's, or other convenient place in London, and settle a plain accompt of stock, profits and losses; and that the accompts should be yearly balanced, and subscribed by all parties, and never after questioned, unless upon a palpable error; and that the profits should be equally divided every year: And that respondent, pursuant to the first and second agreement, deposited his part of the stock in the hands of Stewart; but that Stewart or Pillans did not bring in their proportions, either of the original or additional stock, though in the agreement of the 5th of May, it was artfully expressed, that each partner had actually brought in his [447] proportion of the additional stock: And that Pillans went into North-Britain under pretence of managing the undertaking in catching fish; but instead of catching and curing fish, the only thing the copartnership was to be concerned in, bought up cloths, serges, stuffs, and ratins, and sent them to the Canary Islands, and places where Stewart, who was a wine merchant, dealt, and with respondent's money carried on the wine trade: But that as to the trade intended by the articles, there was not the least proof that Pillans ever caught one single fish; and though Pillans by the articles, as supposed to be a person of skill in catching and curing fish, was to have the sole management with a salary of 250l. per ann. yet he owned by his answer, that he had not any experience or knowledge therein: And that respondent acquiesced, in expectation of great profit under the management of