Burwell & Clarke v. Springfield , 15 Ala. 273 ( 1849 )

COLLIER, C. J.

It may be regarded as settled, that one partner cannot appropriate the property of the partnership to the payment of his individual debt; and if such an appropriation is made, the party receiving it, is liable to the firm in an action to refund, if he was aware that he received the joint estate. In such case it is said, it makes no difference whether the note of the firm be given, or the partnership property applied to pay the individual debt of a partner. One partner cannot release a debt due to the firm, in order to extinguish his individual liability ; nor can a debt due to a partnership be discharged by one of the partners applying it in payment of an individual debt, owing by him to the debtor of the firm, without the knowledge and approbation of the other members of the concern. Dob v. Halsey, 16 Johns. R. 34; Gram & Stewart v. Caldwell, 5 Cow. Rep. 489; Everngham v. Ensworth, 7 Wend. R. 326; Peirce & Baldwin v. Pass & Co. 1 Port. Rep. 232; White v. Toles & Dunlap, use, &c. 7 Ala. 569, and citations in the two last cases. In the present case, the plaintiff, Clarke, appropriated an account due himself and copartner jointly, from the defendant to pay a debt which he individually owed the defendant. Here the parties settled their accounts, with a full knowledge of the misapplication of the partnership effects. This settlement -cannot be allowed, to the prejudice of the partner who had no agency in, and did not assent to it, and the citations we have made abundantly show, that the jury should have been instructed, that the defence relied on, could not be supported. I

The judgment of the county court must be reversed, and the cause remanded.