Hale v. Wilson , 112 Mass. 444 ( 1873 )

Morton, J.

We are of opinion that the defendant has no ground to complain of the instructions given at the trial. Under them the jury must have found that the defendant, by false representations, induced the plaintiff to enter into an agreement for a copartnership and to pay him three hundred dollars as a part of the capital stock of the pretended firm, and that the defendant obtained this money, not for the purpose of establishing a co-partnership, but for the purpose and with the intent of appropriating it to his own use and defrauding the plaintiff. Upon these facts the plaintiff can maintain an action at law to recover back the money fraudulently obtained from him.

The doctrine relied upon by the defendant, that one partner cannot, generally, sue the other at law to recover money paid into the firm, does not apply to the case. The gist of the plaintiff’s case is that there was no real partnership formed; that the agreement to form a partnership was a pretence used by the defendant to defraud the plaintiff of his money, and that the money was not used or intended to be used for partnership purposes. This was the issue upon which the plaintiff rested his case; there was evidence which tended to prove these facts, and, the jury having found them in favor of the plaintiff, he is entitled to a judgment. The instructions given were applicable to the evidence and sufficient. Exceptions overruled.