Meader v. Scott ( 1831 )

Williams, J.,

delivered the opinion of the Court. — This was an action on book account, brought by the plaintiff as surviving partner of the firm of Meader & Eames. The auditors report that,there was a sum of eight dollars thirteen cents on the books of Meader & Eames against the defendant, which was rightly charged to the defendant; that the defendant had also an account against Meader & Eames, oí four dollars and ninety six cents,and also an account of eighteen dollars and seventy five cents against Meader alone, which was for boarding certain hands employed by Meader, after the death of Eames, which left a balance against the plaintiff of sixteen dollars ninety four cents, for which judgement has been rendered against the plaintiff. The legal mutuality of these claims was decided in a similar suit at the last term in the cause of Meader vs. Leslie, reported in 2 Vt. Rep. 569. The cases of Slipper vs. Stidstone, (5 Term Rep. 493,) and the case of French vs. Andrade, (6 Term Rep. 582,) recognise the principle upon which that case was decided, and if there could be any doubt as to the correctness of those cases, this case is not of sufficient importance to induce us to re-examine and overrule them.

From the right of survivorship Meader was legally entitled to ■all the partnership property. It was his duty to collect the debts .due to, and pay the debts due from, the firm. After the debts are paid, he is to pay the representatives of his deceased partner their share. We are not to take notice of his poverty, or to suppose that he will be dishonest. As the right was in him to collect all the demands due to him as survivor, and as it was his duty to pay all debts which he has contracted on his own account, the debts due from and to him may be oflset if the right of no other is affected. We recognise the rights of both the plaintiff and defendant to have the several demands found by the auditor applied one against the other, unless there is some equitable interest in another which the Court as a court of law can protect; and in this case we can discover no such interest. It does not appear that there are any creditors of the firm of Meader & Eames who have any interest; so that this claim against the defendant is not wanted to pay the debts due from the firm. It is not found that this demand was ever assigned to Eames : so that the equitable interest is in his representatives. It is true, that the auditors might have inferred that fact from the other facts which they have found ; but they have not, and it is not for us to make the inference. And farther, if such was the case no notice of it was given to the defendant, and the Court would not protect the interest of an as-signee of a debt when no notice of the assignment had been given to the debtor. It appears farther in the case that by the contract between Meader & Eames and the. defendant, that the defendant was to pay for whatever work was done by them for him in boarding the hands they employed. The defendant was, therefore, under no obligation to pay this in any other way. It was, therefore, a .contract to be performed with the survivor, more especially if he had no notice of any equitable claim in any one else. If the defendant has performed services of the kind stipulated for, and to the amount of the account which the firm of Meader & Eames held against him, he has performed his contract literally, and both Meader and the representatives of Eames should be content. If he has gone farther and made Meader his debtor, Meader is under a legal and moral obligation to pay the balance, and neither he nor the representatives of Eames can complain that judgement should be rendered against him therefor.

The judgement of the county court must, therefore, be affirmed.-