Lee v. Ryan , 104 Ala. 125 ( 1893 )

HARALSON, J.

Under the agreement between Compton and the plaintiff, they were partners -in, operating the saw-mill. As between them, each had an interest in all the moneys to be collected and disbursed ; and so far as third persons were concerned, each had the right to- collect what was due the firm. As between themselves, by the terms of the agreement, Compton was the managing, marketing and collecting partner, and parties who dealt with the firm, it must be presumed, knew this.

The arbitration, by its terms, as we gather from the written award, was intended and did settle, that R. N. Compton was to have the mill and fixtures theretofore purchased of him by the plaintiff, by delivering to plaintiff his note and mortgage given for the same, and paying to him the sum of ninety dollars out of the proceeds of lumber "now shipped” — as it is expressed — amounting to $248.47. As for any lumber not shipped, or timber hauled and on hand, out of which to make lumber, there was no arbitration or settlement; and the evidence shows, without dispute, that there was lumber left out of the submission and award, and that there were unsettled matters between the parties. Even conceding that the award was valid, and not void on some or all the grounds urged against it by defendant, the arbitration was not a final settlement of the partnership, but simply of those matters submitted, the adjustment of which made a final settlement much more easy. The award contains nothing, which divested either partner of his right and duty to represent the firm in any and all unsettled matters. Treating the partnership, however, for the transaction of any other business, as at an end, each member still had the right to represent the firm in making collections, especially so far as third parties were concerned.

It is undeniable, that by the award Compton had an interest in the proceeds of the lumber that had been shipped, to the extent of $34.23. The award did not provide that the sum was to be paid to Compton from Oden or from defendant. That amount was not precisely equal to that which was owing by either one of them to the firm. If plaintiff by this judgment collects what defendant owes, having collected, as the proofs show, all that Oden owed, he would owe Compton for this. $34.23, and would be liable to account to him for it. And so, Compton, having collected the debt here sued for from defendant, is liable to.account to plaintiff for the whole, or any portion of it tp which he may he entitled on settlement. But, surely, defendant is under no obligation to pajr it twice, once to each partner, because they are in a wrangle with each other, as to which of them it ought tp go." Defendant, so far as the evidence shows, never consented to pay to plaintiff. Indeed, it shows to the contrary, according to plaintiff’s own version of the matter. He states that he made two demands on defendant for the amount he owed. On the first interview, he was informed by him, he did not have the- money. On the second demand, he still said he did not have it, and informed him that Compton was demanding its payment to him, when plaintiff told him, not to pay it to Compton, that he, plaintiff, was entitled to .it. At this interview, instead of agreeing to pay it to plaintiff, defendant gave him a written statement to the effect, that- he had allowed R. N. Compton and plaintiff to cut and ship in his name a lot of oak ties to the B. B. & B. R. R. Co., at Bessemer, for which he would owe them, when he received the money from said railroad company, $55, more or less.

This was the only notice that defendant had that the plaintiff claimed this money. It is not shown that be, defendant, had any connection or anything to do with said arbitration, or even knew of the award. The defendant himself swears “I did not know anything of the state of affairs between Ryan and Compton, at the time, [he paid Compton the money] , nor how much each had received from other sources, nor how much each was to receive of the proceeds in my hands. I never had any notice that Compton had agreed to surrender his rights to collect the money due the firm. On the contrary, Compton steadily insisted on his right to make such collection — I never did agree that I would pay a part of the money in my hands to Compton and a part to Ryan.”

Under all the evidence, the case seems to be one where, after the dissolution of a firm, one of the .members, .who had. been.the managing financial partner; collected-a debt from a party who was owing the firm, and-the other-partner notwithstanding sues the debtor for the debt thus paid, on the ground, that by arrangement between him and the other partner, to whom payment was made, the debt was to be paid to plaintiff, of which agreement or arrangement, the debtor was ignorant, and with which he had no connection. It is difficult to see on what principle, such a suit can be maintained. — Parsons on Part., § 287 ; 17 Am. & Eng. Encyc. of Law, 1127.

The view we have felt constrained to take of the case, makes it unnecessary to review any other of the many questions with which it is burdened.

The general charge as requested by the defendant, should have been given.

Reversed and remanded.