Ng Yee Yin v. M.H. Lee

CURTIS, J.—

This is an action for an accounting of a Chinese partnership brought by the plaintiff, Ng Yee Yin, against the defendants, M. H. Lee and Chew Chung Kew. The action is in reality only against M. H. Lee, as he was the only defendant served, and he will hereafter be referred to as the defendant. The partnership involved herein was

[380]

known as the M'an Hing Lee Company, and was composed of the plaintiff, the defendant and the said Chew Chung Kew. The trial was had and judgment rendered in favor of the defendant, and the plaintiff appealed.

On this appeal the controversy has narrowed down to two items involved in the account. These items are for $6,800 and $5,100, respectively.

It is claimed by the plaintiff that the defendant received the sum of $6,800 from the Maxwell Irrigated Farms Company and unlawfully applied all of said sum in payment of a debt due from said company to the defendant. At the time the Maxwell Irrigated Farms Company made said payment to the defendant, said company was also indebted to the partnership of Man Hing Lee Company in a large sum of money approximating $40,000. The plaintiff contends that when said sum of $6,800 was paid, the defendant, being the managing partner of said partnership, should have applied said sum pro

rata

between the copartnership and himself in proportion to the respective amounts due from said company to the partnership and to the defendant. The partnership in which the parties hereto were members had previously entered into an agreement and lease with the Maxwell Irrigated Farms Company in which it was agreed that the partnership should construct certain buildings upon the leased premises for the use and benefit of certain laborers employed by the partnership in working the lands covered by said lease. It was further agreed that the Maxwell Irrigated Farms Company should repay to the partnership all sums of money expended by the partnership in the construction of said buildings. When the time arrived for the construction of said buildings the Man Hing Lee Company was without funds to construct the same. The defendant from his own funds advanced to the partnership over $8,000 for the purpose of constructing said buildings. Thereafter the Maxwell Irrigated Farms Company paid to defendant the sum of $6,800 for the partnership which the defendant applied on the indebtedness due him from the partnership by reason of the expenditures made by him in constructing said buildings. The only criticism which the plaintiff makes regarding this transaction is based upon the assertion that the buildings