Carter v. Christie

By the Court.

Lumpkin, J.,

delivering the opinion.

The note sued on, in this case, having been transferred after maturity — Christie, as to the defense, set up, namely, an equity growing out of the original transaction, stands in no better condition than Hardwick the payee.

It seems, then, that during the year 1852, Carter and Jones contracted with Dr. Hardwick for an equal interest in a professional partnership between the three, extending back to the first of the year 1852, and forward to the end of the year 1853 — Carter and Jones to have one-half of the profits and Hardwick a half. After the time limited for this term, it was further agreed, that it was to continue, or not, through 1854, at the option of Carter and Jones, but with this modification, namely, that for 1854, the three were to be equal in the business — Hardwick to have one-third only, instead of one-half of the profits. Jones retired before 1854, and by the consent of Hardwick, Carter was substituted in his place, both as debtor of Hardwick, and in any other respect. According to the testimony of Jones, Carter was to receive all the benefits, under the contract, which both Jones and Carter were entitled to.

In 1854, Carter and Warner; at the suggestion of Dr. Hardwick, whose health was feeble, undertook to practice together, but for some reason, which the record does not explain, this partnership was discontinued and Hardwick and Carter resumed their former connection, which continued on through 1854, upon the old agreement.

Now Carter alleges, and offered to prove on the trial, (which he was not allowed to do) that instead of Hardwick’s receiving one-third of the profits for 1854, he collected and appropriated to his own use one-half, making a difference of six or seven hundred dollars, and enough to cover the balance of the note sued on. Carter insists that he is entitled to this credit.

If the facts be as stated, and the evidence rejected by the Court is in the record, and proves them to be here, we cannot see why Carter is not entitled to this credit. Hardwick has collected six or seven hundred dollars, which belongs to Carter, and which Hardwick cannot, in justice, hold — and that, too, in violation of his agreement. And it will be remarked that the stipulation, that Hardwick should practice for one-third of the profits for 1854, constitutes in part the consideration for the note sued on.

It is suggested, that to allow this plea and proof to come in, in defense to this action, would involve a settlement of the whole partnership. Suppose it does. It is competent to do this at law. But is this objection well taken ? The offer here is, to prove that Dr. Hardwick had received a definite sum, not out of the business of the firm, but out of the profits, and to which he was not entitled.

There is but little consideration due to Mr. Christie, as the holder of the note. He swears that he took it and sued on it, to accommodate Dr. Hardwick, and that Dr. Hardwick is bound to pay him the money, provided he fails to collect it out of Carter. Under these circumstances, the note should be treated as the property of Dr. Hardwick, and the action prosecuted for his benefit.