M'Coll v. Oliver , 1 Stew. 510 ( 1828 )

By JUDGE PERRY.

The first assignment involves the construction of the instrument declared on, as to the intention and object of the parties in making it. Their intention appears to have been a final settlement of the business of their copartnership, for they have so expressed it. This being their intention, the object to be attained was the ascertainment of the situation of the copartnership, and what was due to the members of the firm. This being done, M‘Coll takes upon himself (he payment of all the debts of the firm, and acknowledges the sum specified in the instrument to be due to Oliver; which acknowledgement appears to have been produced from the consideration, that Oliver surrendered to M'Coll all his interest in the partnership effects. That Oliver did surrender his interest, appears to be manifest joy M‘Coll’s assuming to pay all the debts of the firm. But it is contended that the words “as his portion of the notes, money and accounts,” controls the construction of the instrument, and sshcws that the parties intended in these words, that Oliver bad an interest only in the notes, money and accounts belonging to the firm, to the amount specified in the agreement. To allow the construction contended for, would render the settlement of the parties useless, and we cannot suppose they intended to do a useless thing; besides, it would contradict the parties themsehes, for they have said it was a final settlement. We are therefore of opinion that the acknow-ledgement of JVTColl of the sum due, was a promise to pay that amount; consequently, Olive,r had a right to sue for the recovery of the same: for ir is a well established principle, and has not been denied in argument, that on tile settlement of a copartnership concern, if one partner acknowledges a sum due to the other, he can sue at law for the recovery of the same. The other assignments of error cannot be sustained, because the instrument declared on having ascertained the sum due, the Court had the right to enter judgement for the sum so ascertained to be due, with interest, and was bound to do so. We are therefore of opinion, there is no error in the record, and the Court being equally divided, the judgement of the. Court below is affirmed.

Judge Saeeold not sitting.