Statement of the Case.

firms or either of them was to carry on the business of buying and selling real estate on partnership account, and that at no time, in fact, did either of said firms undertake to carry on such business; that by the terms of the copartnership agreement the scope and character of the business of each of said firms was that of "real estate and note brokers;" that this business continued the same after Olmstead came into the firm as before, and that it was so advertised to the world.

He further denied the allegations of the bill that there was any agreement, either written or in parol, that all profits resulting from operations in real estate by such firm, or any member thereof, should belong to the firm and be entered upon the books thereof, and be paid into the partnership account; or that there was any written or verbal stipulation that information obtained by any member of the firm during the copartnership, and touching real estate with reference to its sale or purchase, or the consent of the owner to sell the same, or desire of any person or persons to purchase real estate in the District of Columbia, should be communicated to the firm for the consideration of the several members, and the action of the firm thereon; or that it was agreed that no member of said firm should, during the existence of the copartnership, engage in the business of buying and selling real estate in the District of Columbia on his own account, or with any other person or persons, except in cases where the proposed transaction had been explained to the firm and it had declined to take part therein.

The answer also denied that either partner was under any disability to engage in the business of buying and selling real estate on his own account, or with any person or persons, without consulting the firm or the members thereof, and obtaining their consent so to do.

In his answer to the amended bill the respondent denied that he was to act as the broker of Stearns in their joint transactions; that he was to receive one-half of the profits on the sale of the real estate purchased by them as compensation for conducting the business and using therein the experience, information, and facilities he possessed as a member of the firm of

Statement of the Case.

Kilbourn & Latta; and averred that by the terms of his contract with Stearns the purchases and sales made in pursuance thereof were to be on joint account, each party being entitled to share equally in the profits, and be equally responsible for one-half of the losses that might result. The answer furthermore set up the statute of frauds as a bar to the enforcement of the alleged new stipulations entered into when Olmstead came into the firm to the effect that the copartnership or the members thereof should be first given the option to take bargains in real estate before the individual members should make purchases thereof.

The defendant averred that all the real estate transactions. entered into by either the first or the second firm of Kilbourn & Latta were the subjects of special agreements beyond the regular business of the copartnership, and that there never was a time during the continuance of either firm when, by virtue of the nature or scope of the copartnership business, and irrespective of special authority, either partner had the right to bind the firm or his copartners in respect to the purchase and sale of real estate; and, further, alleged the general facts already mentioned, in reference to the copartnership and its business.

After voluminous proofs had been taken the cause came on to be heard in the Supreme Court of the District of Columbia, October 27, 1886, when the complainants abandoned all claims against the defendant on account of the matters set forth in the sixth paragraph of their bill, relating to the Thyson purchases, and covered by the second and third prayers for relief, and thereupon the following decretal order was entered: "That the complainants are entitled to recover from said defendant their full share, viz., five-eighths of all profits realized by said defendant from said sales of real estate, referred to in the pleadings and proof in this cause, made by said John Stearns and said defendant, with interest thereon from the time when the same were so realized, it is, this 27th day of October, A.D. 1886, ordered, adjudged, and decreed that said defendant do account to the complainants for their said share of the profits aforesaid; that this cause be, and the same

Argument for Appellees.

hereby is, remanded to the court in special term, with instructions to refer the same to the auditor of the court to state said account upon the proofs in the cause, and such further proofs as the parties may offer, and for such further proceeding as may be lawful and proper under this decree; and that said defendant pay all costs of the cause." 5 Mackey, 304.

In accordance with that decree the cause was referred to the auditor of the court, who, after taking further proof, made his report showing that there was, on January 1, 1888, due the complainants from the defendant, on account of the latter's real estate transactions with Stearns, the sum of $21,562.59, with interest on $12,030.50 thereof from that date until paid. This report was excepted to, but the exceptions were overruled, and the report was confirmed November 30, 1888, and a decree entered in favor of the complainants against the defendant for the amount reported and costs of the suit. From that decree the present appeal was prosecuted.

Mr. Walter D. Davidge for appellant.

Mr. Enoch Totten and Mr. William F. Mattingly for appellees, to the question of jurisdiction, said:

The decree of October 27, 1886, was a final decree. It disposed of every matter in dispute in the pleadings. It practically established and declared the following, to wit: (1) That the agreement of copartnership is valid notwithstanding the fact that it was not in writing; (2) That the copartnership agreement did prohibit the defendant from engaging in buying and selling real estate in the manner pursued by him in connection with Stearns; (3) That the plaintiffs were entitled to five-eighths of all profits realized by the defendant out of the transactions with Stearns mentioned in the pleadings and proofs; (4) That the defendant should account to the plaintiffs for their share of the profits received by him; (5) That the cause should be remanded to the special term, thence to be referred to the auditor to state an account between the parties, and for such further proceedings as might be “lawful

Opinion of the Court.

and proper under the decree;" (6) That the defendant should pay all costs.

Such a decree ended the litigation and settled the whole controversy between the parties, so far as the pleadings and evidence disclosed them at that stage of the cause. When it was passed, nothing remained but a mere matter of computation, so far as the cause was then developed, and 'the reference to the special term was for the purpose of executing the decree according to its terms. Thomson v. Dean, 7 Wall. 342; Lewisburg Bank v. Sheffey, 140 U. S. 445; McGourkey v. Toledo & Ohio Central Railway, 146 U. S. 536; Forgay v. Conrad, 6 How. 201; Winthrop Iron Co. v. Meeker, 109 U. S. 180; St. Louis &c. Railroad v. Southern Express Co., 108 U. S. 24; Missouri, Kansas &c. Railway v. Dinsmore, 108 U. S. 30; Whiting v. Bank of the United States, 13 Pet. 6; Bronson v. Railroad Co., 2 Black, 524.

It is respectfully submitted that the appeal should be dismissed for want of jurisdiction.

MR. JUSTICE JACKSON, after stating the case, delivered the opinion of the court.

It is first contended on behalf of the appellees that this appeal cannot be entertained by this court for the reason that the decree of October 27, 1886, was the final decree in the cause from which an appeal should have been taken. We are clearly of opinion that this proposition cannot be sustained. It is well settled by the decisions of this court that where the purpose of the suit is to obtain an account, such as that prayed for by the bill in this case and directed by the order of October 27, 1886, the decree is of such an interlocutory character that no appeal will lie therefrom. Beebe v. Russell, 19 How. 283, 285; Green v. Fisk, 103 U. S. 518; Keystone Manganese Co. v. Martin, 132 U. S. 91; Lodge v. Twell, 135 U. S. 232; McGourkey v. Toledo & Ohio Central Railway, 146 U. S. 544, 550. In this last case the authorities are thoroughly reviewed as to what constitutes a final decree, and it was laid down as the general rule that if the court made the decree

Opinion of the Court.

fixing the rights and liabilities of the parties, and thereupon referred the case to a master for a ministerial purpose only, and no further proceedings in court are contemplated, the decree is final; but if it referred the case to him for a judicial purpose, as to state an account between the parties upon which a further decree is to be entered, the decree is not final.

In decretal orders, like that of October 27, 1886, the whole case is open for revision, and the court may change its rulings relating to the merits when the cause comes on for final hearing upon the account. Fourniquet v. Perkins, 16 How. 82, 84.

The claim made by the amended bill that Latta in the transactions with Stearns acted only as a broker, and that his share of the profits realized there from was only by way of compensation for conducting such business and using therein the experience, information, and facilities he acquired from his connection with the firm, (which was denied under oath,) has not been insisted upon, and was clearly based upon a mistaken idea as to the true character of the purchases made on joint account by Stearns and Latta. It is not material to determine whether those purchases constituted a partnership between Stearns and Latta, or created the relation of tenants in common between them. The right of control retained by Stearns would indicate that their relation, in respect to these purchases, was that of tenants in common. Clark v. Sidway, 142 U. S. 682, 690.

The court below based its opinion upon two grounds: First, that the scope of the copartnership business and agreement, as alleged in the third paragraph of the bill, (quoted above,) was established, and that the appellant could not engage in purchases of real estate on his own account or in connection with others, except by the consent of his copartners, without violating the duty and obligation which he owed to his firm; and, secondly, that even if the copartnership did not include the business of buying and selling real estate on partnership account, still the appellant could not employ the knowledge and information acquired in the course of the partnership. business in respect to the real estate market, in making purchases or transactions for his own benefit.