Barger v. Collins , 2 G. & J. 410 ( 1830 )

Earle, J.

delivered the opinion of the Court.

The Court below delivered an opinion and directed the jury, in this case, that upon all the evidence in the cause, the plaintiffs were not entitled to recover, because such evidence did not show any dissolution of the partnership between Athey and Barger, in the bricklaying business, or any assignment of its claims, or any knowledge thereof by Collins, the defendant; and because the whole of the said evidence, did not furnish legal, or competent proof to go to the jury of any balance due from the defendant to Alhey, in his life-time, or if any balance, not of greater amount than the set-off proved by him, upon which the action could be maintained. If the Court were right as to the dissolution of the partnership between Alhey and Barger, they were clearly in error as to the remaining part of the direction. The accounts of 1818, and 1819, produced by the defendant in the hand-writing of Alhey, became evidence in behalf of his estate, and it may be, that by their assistance, the plaintiffs might have been able to separate the debt due to Shoemaker and Alhey, from the debt due to Alhey and Barger, and thereby to show what proportion of the large item of $964,01, in the settled account of the 1st of March, 1820, belonged to the former partnership. For this, under the evidence given, added to the first and third items of the account, which were undisputed, they might have been entitled to a verdict, subject to a deduction of the sum of the set-off, which was also proved. We do not pretend to say, that from this source, the plaintiffs would have succeeded to establish this part of their demand against the defendant. This point the jury alone would have the right to decido; and that the plaintiffs were deprived of the use of this proof, by the directions of the Court.

Ail we mean to signify is, that the accounts of 1818 and 1819, might have been used for this purpose by the plaintiffs, and that it should have been left to them to make the attempt, if they had seen proper to do so. We intend alone to say that those accounts were legal, and competent proof to go to the jury, of the balance due from the defendant to Alhey in his life-time. The judgment must be reversed, and the case sent back on a procedendo.

JUDGMENT REVERSED AND PROCEDENDO AWARDED,