Riarl v. Wilhelm , 3 Gill 356 ( 1845 )

Chambers, J.,

delivered the opinion of this court.

This is an action of assumpsit, for money had and received by defendant to the plaintiff’s use, with a count also on an insimul conyputasset.

The plaintiff below, the appellee here, proved, that for several years prior to the suit, a partnership had existed between the parties, plaintiffs and defendant, and that from time to time, the firm had obtained credits at the Bank of Westminster, in which were considerable sums of money standing to the credit of the firm. The plaintiff proved by the admissions of the defendant, in conversation with the witness, held on the last of March or first of April 1841, that a few days before the conversation, the partnership had been dissolved, and the parties had “settled their affairs.” The plaintiff also proved by the cashier of the bank, that in a conversation with defendant, held on the 20th August 1841, the defendant stated, that of the balance standing in the said bank to the credit of the firm, on the 1st March 1841, the sum of $3350 belonged to the plaintiffs. This money had been checked for, and drawn out of the bank by the defendant, except a small sum, in June 1841.

No testimony was offered by die defendant, who, thereupon, moved the court to instruct the jury, that the plaintiffs, from the pleadings and evidence in the cause, were not entitled to recover, upon the ground, that no evidence had been given to prove a promise to pay the plaintiffs any balance found due on a final settlement.

This prayer to the court, necessarily admitted, as proof before the jury, all the facts sworn to by the witnesses, and all rational inferences deducible from such facts.

We have attentively considered the testimony, and cannot find in any part of it the slightest fact or inference, tending to prove a promise from the defendant, the now appellant, to pay the plaintiffs below, the appellee here.

The ground on which partners, after dissolution, can sue each other, in relation to what had been partnership funds or effects, is, that the joint interest, as partners, having ceased, a new contract had been made between the parties, in their individual, as distinct from their partnership characters. The joint interest can only be terminated by an agreement, vesting a separate title or interest in the thing, to which, before that time, there had been a joint title.

It is by no means important in this view of the case, whether the credit in the bank is to be regarded as a chose in action, or as evidence of there being so much money, the property of the firm, a question which was much debated. The same law would apply in either case.

We will treat it as money, according to the doctrine of the appellees. This money the appellant received, and the question was, whether, having been placed there as the money of the firm, consisting of three persons, it could become the separate property of two of them, except by an express arrangement and agreement to that effect?

In every case in which property has been held by partners, it is necessary, we think, to enable one of them to maintain an action for it against another, to show a final settlement of the partnership concerns, and a distribution of the property to the partner claiming, which, in effect, if not in form, is a release of the rights of the other. If the claim be for money, we think it necessary to prove the final settlement of the partnership concerns, and a promise to pay an ascertained sum. Until this is done, each partner has an interest in the entire thing or sum of money, as he is responsible also for the whole amount of the partnership indebtedness, and, therefore, cannot at law be compelled to part with the property or funds by his co-partner.

, . It is not intended that a witness must be produced on the stand, to testify to a positive promise. As in other cases, so in this, what is sufficient proof, is a question for the juiy, and the fact may be established by circumstances, and just and fair inferences from facts, as well as by positive testimony.

The present case, however, is stronger than that of one partner suing another. Their dissolution and statement of a balance, might well be regarded as circumstances, to aid any general declarations of the opposite party, which acknowledged separate ownership, and make a case for the consideration of a jury. The inference is not entirely in opposition to the premises, to say the least of it, that on a dissolution of a partnership, and a settlement of accounts, each partner is to receive his proportionate share pf the property or money remaining for distribution; but it does seem to be a most unwarrantable inference from the same facts, that one partner had made himself liable to the other members of the firm, as joint owners of the property, or joint claimants of the fund. Certainly, before such a conclusion can be reached, there should be some fact going to show, that those other members of the former firm, after a dissolution of thp first partnership, had, inter se, entered into a second.

Our cpnclusion is, that the court erred in refusing to give the instruction in the first bill of exceptions.

The question raised by the second exception is, in effect., disposed of by what has been said. The appellant, (the defendant below,) assumed as the basis of his prayer, that the plaintiffs apd defendant Jrad been partners, apd “had come to a settlement,” and struck a ha-lance in favor of plaintiffs in any particular sum; and the court was asked to say, that the jury could not find for the plaintiffs, unless they were satisfied by tlm evidence, that there was a promise to pay. We think the instruction should have been gjven. The court refused on the ground, that it did not appear from the proof and proceedings in the cause, that any such balance existed in the hands of the defendant; nor did the plaintiff below claim a balance in the hands of the defendant, appearing by a final settlement; but claimed a certain sum of money, standing in the bank books to the credit of the firm, as allotted to the plaintiffs upon a settlement of the partnership accounts.

The partnership was fully proved; and it was also proved, that this money had been part of the partnership fund. The plaintiffs are said to claim in virtue of “a settlement of the partnership affairs, as a division and distribution of the partnership effects between themselves,” so that the concession in the prayer, of “a settlement, and balance struck in favor of plaintiffs,” was in accordance with the pretensions of the plaintiffs. When, therefore, the defendant received this money, he did so, either as a partner,—and if so, there was an end of the case,—or after a dissolution and final settlement of all partnership concerns, and a distribution and allotment to each, of his particular share. Ip this last case the plaintiffs, clearly, could not maintain a joint action, without an express promise. If A receives the money of B, one thousand dollars, and at the same time and under similar circumstances, receives one thousand dollars, the money of C,—a joint action by B and C to recover the two thousand dollars, cannot be sustained. The fact, that the plaintiffs daimed it as their joint property, would not make it so. The right of recovery must be determined by the proof, and if the claim is not consistent with the facts, it must fail.

After offering some testimony , as to periods at which various portions of the funds in hank were checked out, and by whom; and for what objects, the instruction, stated in the third exception, was asked by the defendant, and refused.

It is to the same effect, precisely, as the instruction moved for in the first exception, that there was no evidence to justify the finding of the several facts mentioned: that is to say, a final settlement, and balance struck of all the partnership affairs; and, a dissolution of the partnership; and, a promise to pay the plaintiffs such balance.

What is said above will, therefore, sufficiently explain the views of the court upon this exception. The judgment, of the court below is reversed on each of the exceptions: and to enable the appellees to supply the necessary proofs to sustain their actiqn, if they carj furnish it; we will order a procedendo.

JUnGMKNT RKVRRSED, &C .