Hewes v. Bayley , 37 Mass. 96 ( 1838 )

Shaw C. J.

delivered the opinion of the Court. [Aftei commenting on the evidence in relation to the insolvency of the firm, and stating that the Court thought it would warrant the jury in finding the verdict which they did, he proceeded :] But the Court have not considered it necessary to examine this part of the case so critically as would otherwise be requisite, because upon the other point they are of opinion that this action cannot be maintained. The plaintiff and Handel Win-ship were partners. Winship acting for himself and partner, assigned certain choses in action of the firm to the defendant, in trust for the payment- of the debts of the firm. It is for the money, the proceeds of these choses in action, that this action is brought by the plaintiff alone, in form ex contractu. If the assignment was valid, then the money was received in trust for the creditors, and the defendant would be liable only for the surplus, and that to the partners jointly. But it is conceded that the money collected by the defendant is not sufficient for the payment of the debts, and of course that there is no surplus ; but if there were, it would belong to the partners jointly, and must be sued for in a joint action. The plaintiff seeks only to recover one half of the money in the hands of the defendant, on the ground that the assignment being made by the other partner, Winship, is good as against Winship himself, and that he could not join with the plaintiff in maintaining an action, and therefore that the plaintiff can recover for his other moiety. But the parties did not hold in moieties, and the debts could not be thus severed. Besides, by bringing an action for money had and received, the plaintiff, in effect, affirms the assignment, and of course affirms it, on the terms and trusts on which it was made. The assignment was made on an express trust, from the proceeds to pay tne partnership debts, and if the assignment is valid, . the money is held by the defendant to the use of the creditors, and it has in part been so applied. \

Further, the money collected by the defendant was received s partnership money, and it is impossible to perceive upoYi what legal principle one partner may sue at law for a moietv of it. It seems to fall within the settled rule of law, that in an action at law, one partner can no more sue a third person for a moiety of a debt due the firm, than he could sue his partner in like manner for the debt, if it had been collected by him. The plaintiff insists that his case is to be deemed an exception, on the ground of the alleged wrong and injury done to him by the acts of his partner, in the sudden, and as contended, clandestine dissolution of the partnership, the attachment of the visible property, and the assignment of the debts, of which he supposes the defendant to have been conusant. But whatever wrong he may have suffered in this way, of which we express no opinion, it would not enable the plaintiff tc have his action in this form, in form ex contractu If the law affords him any remedy in his own several capacity, for this alleged wrong, in which his partner participated, he must pursue it in some other form of proceeding.

Judgment on the verdict.