Causten v. Burke , 2 H. & G. 295 ( 1828 )

Buchanan, Ch. J.

at this term, delivered the opinion of the court. The first bill of exceptions being properly abandoned by the counsel for the appellant, it is considered as out of the case.

The question arising on the second bill of exceptions, is u, question of construction.

The plaintiff and defendant, with several others, were associated together in business — they were partners in trade. If the contract, which gave rise to this action, was entered into by such of the members of the concern as were present, in their individual characters — if it was a personal contract, then the plaintiff, under the pleadings in the cause, would be entitled to recover; as there is nothing to prevent one partner from suing another on a mere private undertaking. But if the undertaking by the defendant, and the other partners present, was not merely personal, but on account of the copartnership, the plaintiff is not entitled to recover, on the general principle, that one partner cannot maintain an action against his copart iiers, for work and labour done, &c. on account of the partnership.

And we think, that the engagement by the defendant and the others of the concern who were present, to give the plaintiff $500 for going abroad on the business of the concern, in which he, as a partner, was equally interested with the other partners, was not a private, individual contract, but an undertaking on account of the concern. The same engagement entered into with a stranger would have been binding on the firm; and the present plaintiff, as a member of that firm, must have contributed his proportionate part of the sum contracted to be paid. And what is there in the mere circumstance of his being employed as the agent to transact the business required to be done, in the place of a stranger, to. give to the same terms an entirely different meaning and character, and to turn into a separate individual undertaking on the part of some of the partners, a contract, which in the case of another, would have been considered as made on account of, and binding upon the firm? We can perceive nothing. The services rendered, were for and on account of the firm — the compensation for those services to be paid by the firm, and his just proportion of that compensfftfon to be borne by the plaintiff, as one of the firm. He could not sue the firm of which he was himself a member, nor can he sustain this suit against one of his copartners for services rendered the firm.

■ The court are of opinion that.the judgment of the court below ought to be affirmed.