McGehee v. Dougherty , 10 Ala. 863 ( 1846 )

GOLDTHWAITE, J.

1. We have held this cause under consideration to enable us* to look into the cases to see how far it is allowable for the different members of a partnership, to maintain separate actions against one of the partnership, who on a settlement is found indebted to some, or all the other partners. We can find no case however, in which it has ever been held that such a suit is proper in a court of equity. If the partners resort to that court, it must be for a settlement of the partnership affairs, and if these have been finally settled, and the shares coming to each distinctly ascertained, we can perceive no reason why the stating of an account, showing the indebtedness, should not be considered sufficient to support the action of assumpsit, as it was held to be, when in writing, by this court, in McCall v. Oliver, 1 Stew. 510. The case of Foster v. Allanson, 2 Term, 479, although there was there an express promise to pay, would seem to be equally sustainable, if the partnership had been closed, and the sum due from one partner to the other ascertained by the consent of both. Such seems to be the effect of what is said by the supreme court of Massachusetts, in Williams v. Henshaw, 12 Pick. 378; s. c. 11 Ib. 79; see also, Freemont v. Coopland, 2 Bing. 170; Rakestraw v. Imber, 1 Holt. 368. But although we are clear in the opinion, that when the partnership is finally settled, and the accounts stated between the partners, showing what is due from some to the others, then an action at law may be maintained without an express promise, on the ground that one is implied from the settlement and mutual assent in the ascertainment of the sum due, yet -it may be questionable if courts of equity are ousted of their jurisdiction over the settlement of partnership affairs by this circumstance. It is not impossible that the accounts of a partnership maybe in a condition that the defaulting partner might be able to prove a settlement to be final or otherwise, as would suit his purpose. However the rule may be, (and we purposely decline at this time to further consider it,) we think the bill cannot be sustained in its present shape, because the party proceeds on the notion that the partnership has been finally closed and settled. This is evident from the fact that he sues alone when, as we have before shown, the bill should include all the partners, if for a settlement of the partnership; and for the further reason, that equity has no jurisdiction of a suit by one of several partners against another for the recovery of an ascertained balance. See Rowland v. Boozer, at this term.

2. It is supposed by the complainant’s counsel, that the circumstance that the shares of two of the other partners are assigned to him, is a matter of equitable cognizance, and that this will sustain the bill. It is possible that equity would allow the assignee of an equitable chose in action to sue in his own name, but the mere fact that one is the equitable as-signee of a right of action, which the original holder could only sue for in a court of law, has no warrant from authority so far as we can ascertain. The rule at law is very clear, that the transfer of a right of action, in which two or more are jointly interested, to one of the parties, will not enable him to sue in his own name. [Allen v. White, Minor, 365; 4 Watts, 455.]

The decree must be reversed, and remanded to the court of chancery, when the complainant, if he is so advised, may move to amend his bill, or have it dismissed for want of equity.