Adams v. Shewalter.

and that it fails to state a cause of action for the reasons heretofore specified. It is true that, under the code, one partner can not sue his copartner to recover an indebtedness of the latter to the former growing out of the partnership transactions, until the affairs of the firm have been closed up, and its debts have been paid. But, in courts of chancery, a partner could sue his copartner and obtain an adjustment of his partnership affairs, and thus recover his whole interest therein. By the code we have but one form of action which embraces all that was formerly comprehended by actions at law and suits in equity, and there is a remedy if the case is such as would formerly have called for the interposition of a court of equity. Briggs v. Daugherty, 48 Ind. 247; Douthit v. Douthit, 133 Ind. 26.

In Barnes v. Jones, 91 Ind. 161 (167), it is laid down, "that not only willful acts of fraud and bad faith, but gross instances of carelessness and waste in the administration of the partnership, as well as the exclusion of the partners from their just share of the management, so as to prevent the business from being conducted on the stipulated terms, are sufficient grounds. for the dissolution of the contract by a court of equity. So also, it seems clear that a habit on the part of one partner of receiving moneys and not entering a receipt. in the books, or not leaving the books open to inspection of the other partners, whether such conduct arise from a fraudulent intent or not, is good ground for a dissolution."

In Kimble v. Seal, 92 Ind. 276, it was held that when a partner, on demand, refuses to account with his copartner, a suit for dissolution and an accounting may be maintained, and the complaint need not aver either the amount put in or taken out by either party, these being incidental matters to be ascertained by the proof.

Adams v. Shewalter.

So, in Meredith v. Ewing, 85 Ind. 410, it is said: "One partner may maintain an action to compel an accounting, and to recover such sum as may be found due him upon the final adjustment of the partnership affairs."

It is needless to cite authorities in support of the doctrine that the court is vested with the power to appoint a receiver on proper application, in this class of cases pendente lite. Applying these tests to the complaint under consideration, it was abundantly good for a dissolution and an accounting, and the demurrer was properly overruled.

It is contended that because the agreement of the parties provided that dissolution could only be had at the end of six months, and after thirty days' notice had been given, appellee would be remediless until he had complied with its terms.

Appellant loses sight of the fact that every partner not only has his rights as given him by contract, but those guaranteed by law, and if he is being defrauded, he has access to the courts for relief. It would be a strange condition of things, if a court of conscience would allow a partner, hopelessly insolvent, to loot a concern of $7,000 or $8,000 of its contents, and then barricade himself behind his own fraud, and take advantage of the wrong so perpetrated. Men's estates are not despoiled by courts of justice in this way. It is urged that as the complaint concludes with a demand for $10,000, it is a complaint for a mere demand for money due, but it has been ruled otherwise, and the position is not tenable. Miller v. Rapp, 135 Ind. 614 (618). The contention that the court could not ascertain the amount due, can not be considered here, as the evidence is not in the record. It is urged by appellant that the court erred in sustaining the motion to strike out the second and third

Collins et al. v. Stanfield.

paragraphs of answer. In our opinion there was no available error in this ruling, as all pertinent facts pleaded in either paragraph could be proven under the first paragraph which was in general denial. Robinson v. Snyder, 74 Ind. 110; Gheens v. Golden, 90 Ind. 427. The decision of the court below will have to be affirmed. The judgment is affirmed with costs.

Filed Nov. 13, 1894.

No. 16,903.

COLLINS ET AL. v. STANField.

CONTRACT.-Written.-Parol Verification.-Oral Agreements Performed Subsequent to Making Written Contract.-Subsequent Agreements.Promissory Note.-The rule that the terms of a written contract (in this case a promissory note) can not be varied by parol, does not exclude oral agreements made and performed subsequent to the execution of the written contract; and prior or contemporaneous agreements fully executed after the making of the written contract become, by their fulfillment, subsequent agreements. HUSBAND AND WIFE.-Wife Purchasing Real Estate and Taking Title in Husband's Name.-Suretyship of Wife.-Debtor and Creditor.—Where a married woman bought real estate, giving her note, secured by mortgage thereon, in part payment of the purchase-price, and took the title in the name of her husband, the relation of debtor and creditor was not created between the husband and vendor, and consequently the wife could not occupy the position of surety for her husband.

From the Carroll Circuit Court.

L. D. Boyd, for appellants.

C. R. Pollard and R. C. Pollard, for appellee

HACKNEY, C. J.-The appellee sued the appellants to recover, as against George W. Collins, the balance of the purchase-price of certain real estate sold to him by the

Collins et al. v. Stanfield.

appellee, and as against all of the appellants, the foreclosure of a mortgage of said real estate executed to secure such balance. The appellants answered that at the time of the purchase, it was agreed between said George W. Collins and the appellee, that the note given for such balance might be paid by delivering drain tile to the appellee or her husband; that pursuant to said agreement, and before suit, said Collins did deliver to the appellee and to her husband, and they did receive from him drain tile of a value stated. It also alleged that in addition to the value of the tile so furnished, the said Collins performed certain services for the appellee at her request, the value of the tile and of the services exceeding the amount due on said note.

The lower court sustained a ¡demurrer to this answer, and that ruling presents the only question made by the record. The sufficiency of the answer is attacked upon two grounds; first, that it sets up a contemporaneous parol agreement, varying the terms of the written contract, and, second, that the facts pleaded constitute the appellee a surety for a debt owing by her husband.

Of the first proposition, there can be no possible doubt as to the rule urged, but in the application of the rule, if it appear that the terms of the collateral, oral agreement have been performed on the one side, and their fruits accepted by the other, such executed agreement is taken as a payment or satisfaction of the written obligation. Tucker v. Tucker, 113 Ind. 272; Zimmerman v. Adee, 126 Ind. 15.

The rule urged by the appellee does not exclude oral agreements made and performed subsequently to the execution of the written contract, and prior or contemporaneous agreements, fully executed after the making of the written contract, become, by their fulfillment, subsequent agreements. If it were otherwise, the rule, itself

Collins et al. v. Stanfield.

intended as a shield against fraud, would become an instrument of fraud.

There is, therefore, in this case, no variance of the terms of the note by the alleged contemporaneous agreement performed subsequently to the execution of the note.

Counsel insist that the case of Tucker v. Tucker, supra, is not in point, because, as claimed, it was decided upon the fact that the note there sued upon was executed only as a security for the subsequent performance of a prior oral agreement. The controlling element of the case was upon the point here involved, and to the same point it was cited in Zimmerman v. Adee, supra.

The contention of counsel that the facts pleaded in the answer constitute the appellee a surety for her husband's debt proceeds upon the theory that, having received no benefit from the title supplied to her husband, and having been obligated to pay for it, she necessarily became a surety. The facts pleaded do not disclose that her husband was a debtor, without which it would be difficult to conceive of her relation as that of surety. The facts pleaded show that the credit, as to the title, was extended to the appellee, and that her liability, if any, was primary, and neither contingent nor collateral.

In construing the second subdivision of section 6629, R. S. 1894 (R. S. 1881, section 4904), of the statute of frauds, which denies an action "to charge any person, upon any special promise, to answer for the debt, default or miscarriage of another," it has frequently been held that a promise to pay for property delivered to another is not within the statute, for the reason that the promise was a direct, and not a collateral, obligation. Lance v. Pearce, 101 Ind. 595; Boyce v. Murphy, 91 Ind. 1; Wills v. Ross, 77 Ind. 1; Johnson v. Hoover, 72 Ind. 395; Kernodle v. Caldwell, Admr., 46 Ind. 153.

So, in this case, the fact that the tile were delivered