ver's connexion with him; and if he did not know of it, then the execution of a sealed instrument could not have been with a view to indicate his individual responsibility in contradistinction to that of the concern." These copious extracts are made from the opinions of the judges in Weaver v. Tapscott, because, nomine mutato, they are as applicable to this case as they were to that, and because they leave little or nothing more to be said in this case. It seems to be difficult to find a distinction between that case and this, unless it be in the fact that in that case the bonds were given for negro hire, and in this they were given for the purchase money of land; and that is a distinction without a difference, at least in principle. Land is not ordinarily a subject of partnership operation, and therefore stronger evidence is required to shew an intent to convert real estate into partnership stock. But it is capable of being so converted; and an intention to make such conversion being shewn by sufficient evidence, it becomes as completely a part of the social effects as if it were personal estate. In the case of Wheatbey v. Calhoun, 12 Leigh 264, this court said, that "whatever doubts may have heretofore existed as to the light in which real property is to be considered, when brought and used by a commercial partnership for the purposes of the concern, it is now well settled that it is to be looked upon as forming a part of the partnership funds. Such is at present the received doctrine in England, and so this court has decided." In that case Wheatley and Calhoun had purchased a mill and tract of land jointly, and for some time conducted a partnership milling business. The question was whether there was sufficient evidence of an intention to convert the mill and land into partnership stock, or whether they merely intended to carry on the milling business in partnership. Tucker, P., in delivering the opinion of the court, said: "There may, indeed, be partnerships in the business of milling or mi 1851. October Term. Brooke V. Washing ton. 1851. October Term. Brooke V. ton. ning or farming; but unless the intent of the joint owners to throw their real estate into the fund as partnership stock is distinctly manifested, or unless the real Washing property is bought out of the social funds, for partnership purposes, it must still retain its character of realty." "In this case I see nothing from whence to infer that there was any design on the part of these joint purchasers to convert their real estate into partnership stock." In the case now under consideration the evidence is conclusive that the land was bought for partnership purposes, paid for in part, and intended by the purchasers to be paid for entirely, out of partnership funds, and applied to partnership purposes. The purchase was within the scope of the partnership, for the operations of the furnace could not be carried on without fuel; and the best mode of obtaining it was to purchase land in the neighborhood, well covered with wood, as was the land of Washington. All the partners are therefore bound for the purchase money, on the authority of the cases before cited. The case of Pitts v. Waugh, 4 Mass. R. 424, was a very different case from this. It was a case of speculation in lands, and the question was, whether, not being a subject of trade and commerce, the mercantile law in regard to dormant partners was applicable thereto; and the court thought not. That case was decided in 1808, since which time the partnership law in regard to real estate has undergone great changes. Collyer on Partnership, § 135 and notes. But in this case the land was not purchased for specu lation, but for the purpose of carrying on a business which was an ordinary and legitimate subject of commercial partnership. There is nothing in the objec tion of the statute of frauds. The purchase being within the scope of the partnership, the partners who made it were agents for the partnership, which became bound by a valid contract made by their agents. It would also be bound on the doctrine of part performance. 1851. October Term. Brooke The jurisdiction of a court of equity in this case is fully sustained by the cases of Sale v. Dishman, 3 Leigh 548; Weaver v. Tapscott, 9 Leigh 424; Williams v. Donaghe's ex'or, 1 Rand. 300; Galt v. Calland, 7 Leigh Washing594; Parker v. Cousins, 2 Gratt. 372. The court is therefore of opinion to affirm the decree. DECREE AFFIRMED. ton. Richmond. ISLER & wife v. GROVE & wife. (Absent Cabell, P.) December 6th. Where the subject matter in controversy is of the nature of estimated and unliquidated damages, and the accuracy and credit of the witnesses is impeached, an issue should be directed. Benjamin Beeler, of Jefferson county, died in 1827, leaving a widow and several children; three of whom were by his last wife. Mrs. Beeler lived on the land on which her husband had lived, without any assignment of dower, until 1833, when she married Abraham Isler. During her widowhood her three children lived with her, and on her marriage Isler qualified as their guardian; and at that time the daughter, Mary W. Beeler, was about fifteen years old. In 1835 the land was divided, and Isler held the share of his ward, Mary W. Beeler, until she arrived at the age of twenty-one years; and soon after that period she was married to George G. Grove. Isler settled his guardianship accounts in 1836 and 1839, the last time after Mary W. Beeler had come of age; and according to these acVOL. VIII.-17 1851. October 1851 October Term. Isler & wife V. Grove & wife. counts he was in advance to his ward 109 dollars 24 cents. In 1839 George G. Grove and his wife filed their bill in the Circuit court of Jefferson county, against Isler and wife, in which they charged that the accounts had been improperly settled; and asked for a settlement of the account of Mrs. Isler whilst she acted as guardian de facto of the female plaintiff; and of the account of Isler after his qualification. The defendants demurred to the bill for multifariousness, and also answered; but the court overruled the demurrer, and directed the accounts as asked for in the bill. Under this decree the commissioner reported that the plaintiffs had not required him to take an account of Mrs. Isler's actings before her marriage, and it therefore had not been taken. He reported an account of Isler's actings as guardian, based upon the accounts previously settled, lessening a credit to the guardian for the board for a period of six months, when she was absent from his house, and adding several charges for wood cut and rails removed from the land of his ward; and by these alterations in the account bringing Isler in debt to his ward, on the 1st of January 1839, 174 dollars 12 cents. To this report Isler filed eight exceptions, all of them having reference to the charges for the wood and rails alleged to have been taken from the land of the female plaintiff. The commissioner returned with his report the depositions taken upon this subject; and they shewed that there were numerous witnesses, whose testimony was conflicting and contradictory; and one of the most important witnesses for the plaintiffs was impeached. The cause came on to be heard in October 1844, when the court reduced the price at which the rails were charged to 2 dollars 50 cents a hundred, making due from Isler 152 dollars 87 cents, and overruling all the other exceptions, gave the plaintiffs a decree for that sum, with interest from the 1st of January 1839 until paid, and their costs. From this decree Isler and wife applied to this court for an appeal, which was allowed. Cook, for the appellants. ALLEN, J. delivered the opinion of the court. The court is of opinion, that as the accuracy and credit of the testimony relied upon to sustain the items of the master commissioner's report, which were excepted to in the eight exceptions filed by the appellants to said report, were impeached, an issue should have been directed, as a jury, with the witnesses before them, would have been better enabled to test their accuracy and weigh their credit than a commissioner or the court. The case, too, from the character of the claim, was peculiarly proper for an issue; for although it was competent for the appellees to make the alleged profits received and made by the guardian from the use and sale of the timber taken from the ward's estate a matter of account, yet the extent of the charge on this account, if any was proper, depends upon estimate, and is in the nature of unliquidated damages, and therefore should have been submitted to a jury. The court is therefore of opinion that the decree is erroneous, and the same is reversed with costs. And the cause is remanded, with instructions to direct an issue to ascer tain and try whether any timber, not accounted for by the appellant in his accounts rendered, was taken by him from the lands of the ward, and sold or converted. to his own use; and what sum would be a proper charge against the guardian for such timber so taken and sold or converted to his own use. DECREE REVERSED. 1851. October Term. Isler & wife V. Grove & wife. |