Benson v. Tilton ( 1874 )

Sargent, C. J.

“ It is well settled here as well as elsewhere, that during the continuance of a partnership, and while its concerns are unadjusted, there is at common law no implied promise by one partner to pay anything to the other on a partnership transaction, and no action lies by either in such case, unless the transaction upon which the right of action is based has been settled between the parties and a promise of payment made.” Odiorne v. Woodman, 39 N. H. 541, 546, and cases cited.

If the partnership accounts and business were unsettled between these partners, then no offset of any balance claimed to be due on settlement of partnership accounts could come in here. This note and mortgage were given by one partner to the other for the half interest in the partnership; a suit could be maintained on that by the plaintiff at any time, as that was not partnership property. This suit is not between the partners, but by one partner against third persons. These third persons had nothing to do with the partnership. If this suit had been brought by the plaintiff against Horace L. Tilton, the son, then Odiorne v. Woodman is an authority that no offset of the balance due on the unsettled and unadjusted concerns of the partnership could be allowed in offset, or be taken into the account in an action at law.

But in this case there was an offer to show something more. The master finds that the stock in trade had been mainly disposed of; that all the balance of such stock, with the tools and fixtures, had been appraised and taken by the plaintiff at the appraisal; that all the accounts of the firm with third persons have been settled and adjusted; and that all that remains to be done is to adjust the accounts and claims between the partners themselves, and that the partnership has been dissolved. He finds that there had been no special agreement between these partners as to how the money should be applied which the plaintiff was to allow the defendant for his half of the tools, fixtures, and residue of the capital stock of the firm, which, since the dissolution, the plaintiff had taken and agreed to pay for in some way; and he also finds the fact, that the partners had not reached any adjustment of their company affairs.

But the defendants offered to show in substance that there had been an adjustment of all the partnership matters, and an application of the payment which it was admitted the plaintiff was to make for the tools, fixtures, etc., and in consideration of all this, it was agreed that the plaintiff had received payment in full for this note. This evidence had a tendency to show an adjustment of the partnership business, and a payment of this note to the plaintiff: whether it was to be considered as paid and cancelled as between the defendants and their son or otherwise, would not be material: if it had been fully paid to the plaintiff with his consent and by his arrangement, he no longer had an interest in it which would enable him to bring and maintain a suit upon the mortgage given to secure it. The case does not show whether this note, which was secured by the mortgage in suit in this case, was an accommodation note given to the son to enable him to buy into the ice business in company with this plaintiff, or whether it was a debt due from the father to the son in some arrangement between themselves, nor is that material in this case. If the plaintiff had received his full pay upon the note, his interest in it had ceased, and he could not for liis own benefit and in his own behalf maintain this suit.

The master found that the partnership had been dissolved, and that there had been a partial adjustment of the partnership business; and this evidence thus offered tended to show a full and final adjustment of all these partnership affairs, and that in making that adjustment this note had been fully paid to this plaintiff before the commencement of this suit, which would be a good defence to this suit upon the mortgage securing that note, at least in the name and for the benefit of this plaintiff'. We think the • evidence offered was competent, and should have been received.

Report recommitted.