Dickinson v. Granger ( 1836 )

Morton J.

delivered the opinion of the Court. This action is between two persons recently partners, and the object of it is to recover the balance of a partnership account. The question isj whether assumpsit will lie. The subject has often been before the Court, and though our rule, which was adopted before our chancery jurisdiction was extended to such cases, differs a little from the English and New York rules, yet it is now perfectly well settled and will not be changed. It was definitively laid down in Williams v. Henshaw, 11 Pick. 82, in which may be seen the principal authorities, as follows, “ that assumpsit will lie to recover a final balance of a partnership account; and that this extends to all cases in which the rendition of the judgment will be an entire termination of the partnership transactions, so that no further cause of action can grow out of them.”

A final balance, which of course can never arise till after a dissolution, may be created by the express agreement of the parties, or may grow out of the settlement of the partnership concerns, where the law implies a promise by the partner holding the funds to pay to his copartner one half of all that remains in his hands after the whole transaction is closed, and all the outstanding debts paid off. ' Here the jury, under the instructions given to them, found a settlement of the balance and an express promise to pay it. That this promise may be enforced, we have no doubt. On the adjustment, the plaintiff agreed to pay all the outstanding debts. This was not a condition precedent to the undertaking. If the plaintiff neglects to pay them, he will violate this agreement. And if he does this, and the defendant is compelled to pay any of them, he will have an action upon it, and the measure of damages will be, not the one half, as if they were partners, but the whole of the amount paid.

According to these principles were the instructions to the jury They being correct, and no objection being made to the sufficiency of the evidence to support the verdict, judgment-must be rendered upon it.