Orange-Chatham County NcArchives Court.....Thomas Ragland Et Al, Ebenezer MacNair V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 27, 2009, 1:49 pm

Source: Nc Reports
Written: 1819

Ebenezer MacNair v. Thomas Ragland and others, Executors of the last will of 
Richard Kennon, deceased

From Orange

May Term 1819

Bill filed by a surviving partner against the executors of the acting partner 
of a firm, for an account and settlement of the partnership transactions. By 
the articles of copartnership, the acting partner was to collect whatever 
debts might be due at the termination of the partnership, and account for the 
same as he received them, or as often as the other partners should require. 
The partnership was dissolved on 4 August, 1774, except as to such matters as 
necessarily related to the settlement of their accounts, the collection of 
their debts, and closing of their affairs. The books and papers were left in 
the hands of the acting partner, and in April, 1777, he exhibited a balance 
sheet, shewing, 1st. The sum due to the other partners for stock advanced by 
them, 2d. The amount of moneys, securities for money, and property belonging 
to the firm. In July, 1777, the acting partner made a payment in part to the 
other partners for stock advanced by them, and they being British subjects, 
shortly afterwards were obliged to leave the State, in consequence of the then 
existing hostilities. The bill was filed in 1800, and the Defendants pleaded 
the statute of limitations, and stated in their plea, that in April, 1777, 
their testator stated and settled an account with the other partners; which 
stated account is the balance sheet before mentioned: That the cause of 
action, if any, accrued to the other partners at that time, and than more than 
three years have run since that time, &c.

Plea overruled with costs; for the acting partner was bound to collect the 
debts, and settle the business of the firm, and account as often as the other 
partners should require. No such requisition was made until about the time of 
filing the bill. The acting partner was a trustee for the others; he received 
the moneys and property of the firm in that character, and he was liable to 
pay when they should require it; and it was only when they required it, and he 
refused, that his fiduciary character was put an end to, and the statute 
attached.

Ebenezer MacNair, of the City of Richmond, in Virginia, filed his bill in the 
Court of Equity for the District of Hillsborough, and charged that on 24 
August, 1771, his brother, Ralph MacNair, late of Hillsborough, Merchant, 
entered into partnership with Richard Kennon, of Chatham County, for the 
purpose of carrying on trade as Merchants and partners, in Chatham County, 
under the firm of "Richard Kennon and Company," agreeably to the articles duly 
executed by them, and written in the words and figures following, to-wit,

"Articles of Copartnership entered into this 24 August, A. D. 1771, between 
Ralph MacNair and any person he may hereafter take in with himself, on the, 
one part, and Richard Kennon, on the other part, witnesseth: First, That the 
said Copartnership shall commence on 16 October next or before, if the said 
Ralph MacNair's fall goods come to hand, and shall continue as long as the 
parties are inclined: they the said Ralph and Richard sharing each the equal 
half of all loss and gain by the trade carried on under these articles. 
Second, That the said Ralph MacNair shall charge to the new company whatever 
goods he can supply from his next fall and spring cargoes, to be delivered at 
Hillsborough, at the rate of seventy per cent, advance from the sterling cost, 
for Virginia money; and Virginia money in room of sterling, for the packages, 
and no more. That for the future supply of the store, he the said Ralph 
MacMair shall import goods twice a year, agreeable to schemes or orders by the 
said parties mutually made out for that purpose, and shall charge them at the 
same rate as above mentioned; allowing twelve months credit for all the goods 
they supply, and charging interest for what is not paid in that time; and 
allowing a discount for what is paid before. And that in case of goods being 
taken or lost, or the store being otherwise disappointed of goods, or at other 
times assortments he wanted, they shall be purchased wherever the parties 
shall judge host for the advantage of the concern. Third, That the new Company 
shall allow the said Richard Kennon for the land and improvements whereon he 
now lives in the County of Chatham, called Stony Hill, whatever they shall be 
found to have cost him, valuing the goods paid to workmen and others, for 
building, improving, &c., at the rate of 133 1-3 proclamation money advance 
from the sterling cost, which shall be guessed at by the parties. He also 
shall charge whatever goods he may have on hand at the commencement of this 
Copartnership, at the rate of seventy per cent, Virginia money from the 
sterling cost; and the currency articles at what they shall have cost him at 
that place; also his household furniture and bay horse. All which articles 
shall remain afterwards in equal Copartnership, in the same manner as every 
thing else belonging to the concern. Fourth, That the said Richard Kennon 
shall reside at Stony Hill, or at whatever place the parties may think proper 
to remove the store to, and take upon him the management of the concern, with 
such assistance as they may think necessary. For which services he shall be 
allowed at the rate of forty pounds proclamation money per annum, out of the 
profits of the trade; and shall charge himself after the rate of 133 1-3 per 
cent, advance for proclamation money from sterling, and no more, for all the 
goods he may want for himself and his negroes; every other expense attending 
the business, coming as a proper charge against the concern. Fifth, That the 
firm of the Company shall be Richard Kennon and Co.; and neither of the 
parties shall be able to discontinue the trade without giving twelve months 
notice to the other. That an inventory shall he regularly taken once a year 
about 1 July, and a true state of the affairs made out, of which a copy with a 
list of the debts deemed had, shall be delivered to the said Ralph MacNair. 
And that the said Richard Kennon shall collect whatever debts may be due at 
the termination of this Copartnership, and finally settle the affairs of the 
concern with what assistance they shall think necessary: and shall account for 
the same as he receives it, or as often as the said Ralph MacNair shall 
require. Lastly, That in case of the death of either party, an inventory shall 
he immediately taken, in which the goods on hand, debts, houses, and every 
other thing belonging to the concern shall be valued as in the next preceding 
inventory; and that the debts due by the store being first paid off, the share 
of the deceased partner shall be paid to his heirs as it shall be collected, 
or in two equal yearly payments, the first term of payment to be after the 
expiration of two years after such decease, in witness whereof the parties 
have hereunto set their hand and affixed their seals the day and year first 
above written.
                                "RALPH MacNAIR,  (Seal.)
                                "RICH'D KENNON,  (Seal.)
"Sealed and delivered in the presence of 
           "John M'Clellan, 
           "Arch'd Campbell."

The bill then charges, that at the time these articles of copartnership were 
entered into, the Complainant was a copartner in trade with his brother Ralph, 
in the town of Hillsborough, and immediately afterwards he became a partner in 
the firm of Richard Kennon & Co. Richard Kennon retaining one-half of the 
interest in the said concern, and Complainant taking one-third, and his 
brother Ralph retaining two-thirds of the other half.

That Complainant, with his brother Ralph, immediately afterwards, and from 
time to time, supplied Richard Kennon, as acting partner of the firm of 
Richard Kennon & Co. with goods to a large amount, until 4 August, 1774, when 
it was agreed between the partners that the business of the concern should 
cease, as to all matters, except such as necessarily related to the settlement 
of their accounts, collections of their debts and the closing of their affairs 
as copartners.

That agreeably to the article which required that Richard Kennon should 
collect whatever debts might be due at the termination of the copartnersbip, 
and finally settle the affairs of the concern, it was also agreed on the said 
4 August, 1774, that Kennon should immediately set about the collection of the 
company's debts, and the settlement of all the affairs of the concern; and, 
for that purpose, all the books and papers belonging to the concern were left 
in his hands; that he proceeded to collect the debts and settle the business; 
and, on 10 April, 1777, produced to the Complainant and his brother Ralph the 
balance account, signed by him for Richard Kennon & Co. (a copy of which was 
annexed to the bill:) by which it appeared that the company's property then in 
his hands, in money, securities for money, &c., amounted to 3,069£ 0s. 10d., 
and that the sum of 1,853£ 5s. 3d. was due to Complainant and his brother 
Ralph for goods furnished to the concern.

That Kennon was requested to continue the collection of the debts and the 
settlement of the business, and that on 1 July, 1777, he made a payment to 
Complainant and his brother of 141£ 10s. 1d.

That shortly afterwards, the Complainant and his brother, being merchants, 
trading to Great Britain, and being natural born subjects of his Britannic 
Majesty, were obliged to depart from the state, leaving the books, papers, 
property and business of the concern of Richard & Co. in the hands of Kennon, 
who was in proceed to collect the debts and settle the business of the concern.

That Ralph MacNair has died, having made his will and appointed Complainant 
his executor; that Richard Kennon having collected the debts due to the 
concern, and converted the money and property of the concern to his own use, 
has also died, having made his will and appointed Thomas Bagland, Boling Hines 
and Celia Kennon his executors and executrix; who have proved the will and 
taken out letters testamentary. That he died possessed of or entitled to a 
large personal estate, more than sufficient to satisfy the demands of the 
Complainant; that the books and papers of the firm of Richard Kennon & Co. 
also came to their hands, and that they refuse to come to any settlement with 
the Complainants. The bill prayed for an account, and that, the Defendants 
might be decreed to pay such sum as should he found due on such account.

To this bill, the Defendants entered the plea of the statute of limitations, 
and therein stated, that in the lifetime of Richard Kennon, to-wit, on 10 
April, 1777, he stated and settled an account in writing with Ralph MacNair 
and the Complainant, and which was assented to by them, of and concerning the 
goods and stock which had been supplied to the partnership of Richard Kennon & 
Co. by Ralph MacNair and the Complainant, making a balance of 1,853£ 5s. 3d. 
then due to them in respect thereof; and also of and concerning the whole 
money, securities for money and property of the partnership trade, and of and 
concerning the profits and gains made thereby; and it thereby appeared, that 
there then was in Richard Kennon's hands, in money, securities for money, and 
other property belonging to the partnership trade, to amount of 3069£  O.s. 
10d.: That the goods and stock were so supplied, and the monies and property, 
if collected and received, (which Defendants did not admit) were so collected 
and received by Richard Kennon, and the said account so stated and settled, 
and what was due from him to Ralph MacMair and Complainant, became due in the 
life-time of Richard Kennon, and more than three years before the filing of 
the bill or serving of any process to appear and answer thereto. That if 
Complainant or Ralph MacNair, had any cause of action against Richard Kennon 
in his lifetime, or against the Defendants since his death, for or concerning 
any of the matters or things contained in the bill, the same did accrue above 
three years before filing the bill, or serving of process to appear and answer 
thereto; and that neither Richard Kennon, in his lifetime, nor the Defendants, 
since his death, did af any time within three years before filing the bill or 
serving process to appear and answer thereto, promise or agree to come to any 
account for or to pay or any way satisfy the Complainant or Ralph MacNair, any 
money or other thing for or concerning the matters or things set forth in the 
bill, &c.

This plea being set down for hearing, was sent to this Court.

Taylor, Chief-Justice: The bill is brought by Ebenezer MacNair, surviving 
partner of Richard Kennon & Co., against the executors and executrix of 
Richard Kennon, for an account and settlement of the partnership transactions. 
The bill was filed in October, 1800, and in April, 1802, the Defendants 
entered a plea of the statute of limitations, which states, that in April, 
1777, their testator stated and settled an account with the Complainant and 
the deceased partner, Ralph MacNair, making a balance of one thousand eight 
hundred and fifty-three pounds, five shillings and three pence, due to the 
Complainant and Ralph MacNair, for merchandise furnished to the copartnership; 
and another balance of three thousand and sixty-nine pounds and ten pence, in 
Kennon's hands, for money, securities and property, if collected and received: 
and the plea avers, that the cause of action, if any ever existed, accrued 
more than three years before the filing of the bill. The real transaction 
between the parties is set forth in the bill; and the articles of 
copartnership shew that this plea cannot be sustained. According to the fourth 
article of copartnership, Kennon was to manage the concern will such 
assistance as the parties might think necessary; and by the fifth, he was to 
collect whatever debts might be due at the termination of the copartnership, 
and to account for the same as he received them, or as often as the said Ralph 
MacNair should require. The partnership was dissolved by mutual consent, on 4 
August, 1774, except as to such matters as necessarily related to the 
settlement of their accounts, the collection of their debts, and closing their 
affairs as copartners; and for these purposes, Richard Kennon was authorized 
according to the fifth article; and the books and papers were left in his 
hands. It was in pursuance of this authority, that in April, 1777, he 
exhibited a balance sheet the paper set up in the plea, as a stated account, 
and while the business of collection was yet in progress and incomplete. A 
payment was made by Kennon in July, 1777, on account of the stock furnished; 
but the payments as to the profits were to await the final collections and 
settlement. This was not effected until after the Complainants had been 
obliged to leave the State in consequence of hostilities. And until it were 
completed, Kennon had in his hands the moneys of the Complainant, refusing to 
pay them upon request. In this state of things the Statute of limitations 
could not attach upon the demand. The statement furnished by Kennon, was to 
shew from time to time the progress he was making; the moneys were received by 
him in the character of a trustee, liable to pay what he received, when his 
copartners should require it; and it was only when they did require it and he 
refused it, that the fiduciary character was put an end to. Upon any other 
construction, the Statute would begin to run upon every separate sum, however 
small, as it was received by Kennon; and the Complainants could only recover 
such sums us were received within three years before the bill filed.   

The plea must be overruled with costs.

Cited: Com'rs v. Lash, 89 N. C. 169; Patterson v. Lilly, 90 N. C. 86; Baker v. 
Brown, 151 N. C. 16.


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