Wise v. Copley, Stone & Co. , 36 Ga. 508 ( 1867 )

Warner, C. J.

The only question presented by the record in this case is, whether a creditor who holds a demand against an individual member of a mercantile firm, purchases the copartnership goods from that individual member of the firm, knowing the same to be copartnership property, can, in an action brought against him by the partners or their assignee for the value of the goods so purchased, plead that demand, either as payment, or as a set-off against the copartners or their assignee. The goods were purchased of one of the copartners at his solicitation, by the creditor of the individual partner, and were charged to the purchaser on the copartnership books. It is a well settled rule, that one partner cannot dispose of the copartnership property in payment of his individual debt, without the assent of his copartners, either express or by necessary implication. In order to create the implied assent of the other partners to such a transaction, the evidence should be clear and satisfactory, which the evidence in this record does not establish. It is true, that each partner is the agent of his copartners when acting within the seope of the copartnership business; but it is not true that one individual partner has either the legal or moral right to appropriate the copartnership effects to the payment of his individual debts, v.ithout the assent of his copartners. Such assent should be established by clear, indubitable evidence, in order to bind the other copartners. To establish the rule as contended for by the plaintiff in error in this case, would be a dangerous and mischievous precedent, and contrary to the decision of this Court in Harlow vs. Rosser, Scurry & Co., 28th Ga. Rep., 219. See also the case of Dob. vs. Halsey, 16th John. Rep., 34.

Let the judgment of the Court below be affirmed.