Buxton v. Edwards

W. Allen, J.

1. The first count, and the exceptions relating to it, are disposed of by the verdict.

2. The evidence given by the plaintiff’s agent, in relation to the giving of the note in suit, was clearly competent.

3. The testimony of the plaintiff, that he understood that it was Wm. Edwards & Sons who had gone into insolvency, was competent, in connection with the evidence that he had proved claims against the insolvent estate, as bearing upon the question whether he had notice or knowledge of the dissolution of the firm of Wm. Edwards & Sons.

4. The first prayer for instructions, to the effect that no payment on the note of Wm. Edwards & Sons, made by Wm. Edwards Sons after the dissolution of the former firm, would take it out of the operation of the statute of limitations as to William Edwards, was properly refused. If the plaintiff had no notice of the dissolution of the former firm, the effect of the payment as to him was as if there had been no dissolution. Sage v. Ensign, 2 Allen, 245. He was not affected by any arrangement as to the payment which may have been made between the partners.

5. The third instruction asked was properly refused. If the plaintiff took the note by mistake, it was not necessary for him to show that he was induced to take it by fraud.

6. The other exceptions relate to the right of the plaintiff to recover on the common counts of his declaration. There are two such counts, one for money had and received, and one upon an account stated. It is assumed that the plaintiff held a valid note of the defendants as composing the firm of Wm. Edwards & Sons, upon which he could maintain an action against them, and that he cannot recover upon that note on the count for money-had and received, whether because the note is not specified in the bill of particulars or for other reasons, is immaterial. The questions arise upon the other count. It is assumed also that the transaction in December 1879 is sufficient to show such an accounting as will sustain an action on an account stated. There is no exception upon this point, and it seems clear that when the payee of a promissory note, upon which several payments have been made, presents it to the maker, and at his request agrees to remit a proportion of the interest, and the parties compute the amount due upon that basis, and fix upon the sum so found as the amount to be taken as due upon the note, it is such an accounting together as will sustain the action.

An accounting together is not the creation of a new debt. It is a new statement and acknowledgment of an old debt, from which a promise to pay is implied sufficient to maintain an action, but not to discharge the old debt, or to bar an action upon it in its original form. There may be an express promise, which will supersede that which is implied, and which will discharge the original debt. In the case at bar, the note which was given at the time having been avoided, there was no evidence of any express promise, and the action upon the account stated must be sustained, if at all, upon the promise implied from the accounting. We understand the instructions upon this point asked by the defendant and refused by the court, as well as the instructions given, to refer, not to any supposed express promise not disclosed in the exceptions, but to such implied promise; and the precise question to which they relate is, whether that was the promise of all the defendants, as the firm of Wm. Edwards & Sons, or of a part of them as Wm. Edwards Sons.

The fourth prayer for instructions seems to have been framed on the assumption that there was evidence that the agreement was that of Wm. Edwards Sons, and, if that assumption is correct, the instruction should have been given. The contract of one party will not sustain an action against another. If there was no evidence of a contract with Wm. Edwards Sons, the instruction ought not to have been given, and the instructions given were sufficiently favorable to the defendant. As the only promise is that which is implied from adjusting, computing and agreeing upon the amount due on the note, which constitute the accounting together, and as the promise implied can be only that of the party accounting, the question may be stated in another form. Was the firm of Wm. Edwards & Sons, or the firm of Wm. Edwards Sons, the party to the accounting ? In this connection the fifth and seventh prayers for instructions may be referred to. The jury were instructed that, if the plaintiff had actual notice or knowledge of the dissolution of the firm of Wm. Edwards & Sons, he could not recover, and the jury expressly found that he did not have such notice or knowledge. The defendant, in these prayers, asked for instructions, in effect, that, if the plaintiff had reason to know that the firm was dissolved, he could not recover.

To both of these exceptions, — that to the refusal to instruct that the plaintiff could not recover against Wm. Edwards & Sons on a contract with Wm. Edwards Sons, and that to the refusal to instruct that reason to know was sufficient knowledge of the dissolution, — the same answer may be given: that the presumption was that the accounting, and the promise implied from it, were by the debtor, the firm of Wm. Edwards & Sons, and that constructive knowledge by the plaintiff of the dissolution of the copartnership would not change that presumption. The act was one that one partner has a right to do after dissolution. It is an-adjustment and admission of an existing indebtedness for which the firm is liable, in making which each partner, after dissolution, is authorized to act for the others; and in stating an account of a debt of the firm he must be presumed to be acting for the joint debtors; the agreement relates to a subsisting debt of the copartnership, and is an admission that the stated sum is due thereon from the copartnership, and the promise to pay, which is implied, is that of the copartnership. The presumption, even in accounting with a party who has notice of the dissolution, is that it is done for the copartnership, or is the act of all the copartners. There is nothing in the case at bar to rebut that presumption, and these prayers for instructions were properly refused. Vinal v. Burrill, 16 Pick. 401. Gay v. Bowen, 8 Met. 100. Cady v. Shepherd, 11 Pick. 400. Bridge v. Gray, 14 Pick. 55. Ide v. Ingraham, 5 Gray, 106.

Exceptions overruled.