McWhorter & Young v. Sell

Jackson, Chief Justice,

concurring.

The partner to whom the payment was alleged to be made was dead. The issue was whether that payment was or was not made, and it arose on a suit brought by the surviving partner, but who had bought the interest of the dead partner. It was proposed to prove the payment by the defendants to the suit who pleaded the payment. The question is, were they competent to prove payment to the dead partner? Clearly not; because the mouth of the partnership as to payment was as effectually closed in death as if both were dead, the payment being to the dead partner, and that transaction being between defendants and him alone, and that transaction was the issue.

The principle on which the receipt of money by one partner binds both, is that of agency. If the agent is the representative of the principal in the contract or transaction at issue and is dead, the other party is incompetent.

So that if this dead partner were the mere agent of the living partner, the other side could not be heard. It is clear, therefore, that the defendants were not competent to prove this payment, the thing at issue.