Account - Partnership - Impossibilitz of taking acoolDlt because inadequate
- - :reoords kept ..•.• -Denial of remed,y to all partners.

Aooount - Partnership - Admissions - Effect of aoeount signed by ane

. partner admitting liabilitz to other partner but unsigned by other
partner upon SUbsequent. suit for aooOUllt BY other partner.

Aooount - Responsibility for keeping proper trading acoounts -
for.legislation.

Partnership - Aooount' - Impossibility of taking account because inadequate
reoords kePt - Denial of remed;{ to all partners.

Partnership - Aooount - Admissilllls - Effect of acoount signed by ane

          .1 .partner admit.til1f' liR.bility -1;(' (''the!' PE'..rt!ler b'!!t u:lsignecl.by other
partner upon subsequen] suit for aocount by other partner.

1. Where partnership aooounts have not been kept, or are unintelligible
or have been destroyed or wilfully Withheld, every presumption, should

be made against the partner or partners to whose negligence or misoonduot
t~_ynon-production of proper aooounts is a~tributable. , However, where,
~cause of the default of ¥l partners, it is impossible 1(0 make even

an approximate aooount, alr partners will be denied' reoovery even if

one party ma;y be less blameworth;r t~ his partners. Legislation is
needed to enoourage the keeping of proper trading aooolDlts.

2. Where one partner has signed an aocount admitting liability 'to
another partner to the amount of a. speoifio sum but the other partner
for unspeoified reascns failed to sign the aooount, the aooount did

. not beoome a binding agreement on the parties. In a subsequent suit

: tor an aooount in whioh both parties through their failure to keep
)'ad8quate reo~rds prevent the ~ourt f'rom- determining even an approximate
"'it will not -be enforoed even in the absenoe of a :.olaim to set'                                                                                                                                                                                                                                                                                

ott ,: ~octf of pa;yment t because t ,0' do so would be in the nature of

* CQlU."t I i'lJLDl8Z1 t C.J.; Cumings, J. and Evans, J.

an unfair penalty to the one partner for his subsequent oonduct, and
because the other partner oontributed to the virtual impossibility
whioh he asks the court to achieve.

Appeal.

~t~~l.<2,.f..~i.4'!a.I.naD.a,c~u~:'. The facts of this case are set out in
detail in the preliminary judgment given in the High Court in 1939 a

judgment in which I nee~ hardly s~ I fully ~onour. This judgment

directed an account of partnership dealings between the plaintiff and
both defendants, and, following it, attempts have been made to take

an aooount between the parties, and to ascertain their respective
liabilities to the partnerships found to have existed. It' is a matter
of no surprise whatever to me to find that the attempt has failed, and
that the learned judge of the High Court subsequently found i~ proper

to dismiss the action, being "abundantly satisfied that it"is impossible
to arrive at even an approximate finding as to the state of indebtedness

of the parties."

From this decision the plaintiff has now appealed, and we are faoed
with a matter which for my part I find of much difficulty. The parties
have been found to be partners in a series of ventures, and there is

no appeal as to that. Two points follow and are to my mind obvious

and indisputable, (a) that each of the partners has a prima facie right
to an account from any of the 'others Hho are "aooounting parties" (and
here they all seem to be), and these "accounting parties" are liable

to do all things necessary in order to cidjust and filially settle the
state of the partnership accounts and (b) if no books of aooount have

been kept, or they are unintelligible or have been de~royed or wilfully

withheld, every presumption should be made against those to whose
negligenoe or misconduct the non-production of proper accounts is due                                                                                                                                                                                                                                                                                                                                                                         

But of course, if all the persons interested are in pari delicto, this

rule will not be applied.

Now as to the last point , certain" remarks in the preliminary
judgment and in the judgment nos appealed from are-much in point •

It is pointed out that the terms of this partnership, or series of

partnerships, which involved transactions running into thousands of
pounds, were not reduced to writing, nor were any proper arrangement~
made for keeping the partnership accounts. The parties, all of them,

'by their original neglect and subsequent indifference place the courts
in a position of being asked to achieve the well nigh impossible. Not
for a moment do I wish it to be inferred that difficulty should keep
our courts fran doing equity, but equity at least demands that the
mode by which these persons have dealt with one another should to soma
extent regulate the manner in which the court will deal with their
difficulties. If all ot them by their neglect ask for a decision in

a matter virtually impossible of decision, they must go empty awa;y,
even though it mavr be felt that one party, and in this case I refer·
to the plaintiff, is less blamewortey than his partners.

If it had been show that one of them bad fully done his part,

I should have had no hesitation in endeavouring to apply the rule. (b)
set out above, and directed an account on the lines suggested in the
preliminary judgment (whioh were not subsequently followe~) with

ever" pr~sumptian against a defaulter. It may be said that it is· not,
in the. &bsenoe of evidence, within the province of a judge of this
oourt to state whether or not an accounb can be taken; but I hold
that a perusal of the whole of the evidence in this case, and an

apprGois.tion of t1iJ:: hOJl",lt:ll;;d attelll}:l~ alrt:lady made 'Lo arrive even at

an apprOximation of a fair acco1mt between the parties makes it olear
that no account, even of the rou~hest natures can be aocomplished by

a:n::r of our civil courts or by an::! acoountant, and l am oonvmoed that-
again to attempt such a cours.e can only make confusion wOrse confounded.
The parties have had a chance to have an account made for them; the
ludicrous result of hours of deliberation speaks for itselt and for the
hOfe of making an account in the future.

That is "That I have .. t.o sa,y as to the taking of an account. But
it is not all.· The court in its search for some fair manner of giving
relief to a:n::r party entitled mq consider their. conduct both before

and during the litigation. As already observed, all parties are culpable
in some degree or another of neglect in the manner in which these part-
nerships were brought into being and 8onducted. The oonduct of the
defendants is particularly one which calls for some stern comment.

The seound defendant is perhaps fort1mate to escape a conviction for
ocmhmpt. From the first the defendants adopted dela;ying tactics in

most aggravated fom. They denied, and the first defendant supported:
the denial on oa.th, the existence of partnership in their dealings with
the plaintiff in a most blatant manner, in spite of clear evidenoe that.

these partnerships existed and even to this date the second defendant
seems to make no attempt ~o aooount end acts with bad faith and dis-
respeot. And yet these defendants, who denied the existenoe of the
partnerships, actually made and signed in 1931 an aooount of their
mutual dealings with the plaintiff, and admitted that a sum of LE.315
(no insignificant figure) was due for payment to him by the seoond
defendant as his share in the partnerships. Cklly the refusal of the
plaintiff to sign (for some unexplained reason) prevented it from
beooming an agreement binding on the parties. And the aooount is
actual~ pleaded in the alternative as a matter of defence by the
defendants. Paragraph 13 of the statement of defense reads l

"The defendants allege that an account of all dealings, save a
transaction in-oattle, betueen the plaintiff and themselves

has on February 11, 1936 at Kassala. been taken and agreed by the
parties, and all sums due to the plaintiff have been paid to him."

The account referred to is that contained in the document exhibited,
and in my judgment of 1939 I expressed myself as not satisfied that the
~lleged payment was made, although a definite deoision was left to the
acoountants.

I have referred to this aooount at some length beoause it seems
conclusi vely to show that some money uas in fact due then to the
plaintiff, for I am oonvinoed that neither of these defendants would
have aocepted a liability of a single pound, let alone LE.315, i1' it
was not due. The first defendant's allegation that it was admitted
for the sake of peaoe and oompromise is nonsense, and I do not give
it a moment's oredenoe. So we are in a position of knowing with
reasonable certaint;r that the defendants in 1936 or 1931 at least
admitted. that the partnership owed the plaintiff the sum of LE.375.
Why then, in the absenoe of a olaim to set off, or proof of P83lllent,
should it be withheld from the plaintiff? - Because at the time of the
intended agreement he refused to make it binding? I think so. We
sure~ cannot fairly give him now, because of the defendants' oonduct
after the institution of this suit, something which he refused to ,
aooept before he embarked on these prooeedings. To do so "lould in

my .. opinion be too muoh in the nature of a penal award. Reluotantl;r,
very reluotantly, I have oome to the oonolusion that nothing mOie oan

be done for this plaintiff, who has oontributed to the virtuai impossibil1t'

whioh he asks this oourt to aoMeve. A purely arbitra.r;r award. would
to m;r mind. form the most satisfactory solution of this tangle, but I
do nct think we have justification in law for that course and the

-parties are nct prepared. to agree to arbitraticm, whioh would neoessarily
: be of a rough and ready nature.

Finally, 1 wish to add. that this oourt ·:haS on more tlwl. one

oocasion recently thought· it proper to call attent.ion to & very

general failure on the part of natiw merohant",-·to keep proper trading
aooounts. Things go wrong, and litigatian almost inevitably tollows.

the parties then expect the oourta--.to Wlrav.el. the tangled fillanolal

skein. and settle an .aocount for them •. Apart from cther considerationa.
this is a.serious '-taste of the time-of the oourts-and must be disoouraged.
Oonversely, the keeping of proper aoco.~ts by . ...merohants should be
encouraged in every--wq Possible~ .. Even if the high standard .of l!bglish
aooountancv practioe cannct be expected. - and "1 see no reason -wb;;r at

least thi~ should not be striven for - an adequate and reliable .. system

.of aooounts can be kept. If this had been done in the present instanoe

it is unlikely the oourts would ever have been troubled with. this .. oa.s.e.

As it is they have been set an impossible task •. It is~ not for this

oourt to speoit;y more preCisely the remedy', but it would oertainly

seem to be a matter of which the, legislature should take serious and

early oognisanoe.

In m;r opinion this appeal must fail; let eaoh partY' bear his own
oosts.

 I ooncur.

Cumings, J .1I ooncur.

~eal dismissed.