Citation Numbers: 6 Daly 422
Judges: Daly
Filed Date: 4/3/1876
Status: Precedential
Modified Date: 2/5/2022
The contract between the parties was one of copartnership in the horses. The defendant purchased the one-half interest in each of them. He was to have the control of them. No charge was to be made against Phyfe, the plaintiff’s assignor, for their keep or training, and the winnings were to be equally divided. So far as respects the common property and the profits from the joint adventure, it was a copartnership, and as by the terms of it, the defendant was to have the control of the horses and bear alone the expense of keeping and training them, the claim for which this action was brought is entirely separate and distinct from the copartnership, and was in no way involved or necessarily connected with the adjustment and settlement of it. Where such is the case, an action will lie by one partner against another, to recover a claim or debt. “ There may be,” said Lord Abinger in Worrall v. Grayson (1 M. & Welsh. 167, “a state of circumstances
The defendant, after having agreed that Phyfe, after the co-partnership was entered into, was not to be charged with the expense of keeping the horses, the defendant, by the terms of the agreement, having the sole control of them, and having neglected, for a considerable length of time, to take charge of them, although frequently requested by Phyfe to do so, by which Phyfe, in whose possession they were, was put to the expense of keeping them, Phyfe had a claim against the defendant for the payment of this amount, which, as between them, was entirely separate and distinct from the purpose for which the copartnership was formed.
It was said in Townsend v. Goewey (19 Wend. 429), upon the authority of the cases there cited, that a specific promise or an agreement between partners, though in respect to a part of the common fund, takes it out of the general account in equity, and makes it the subject of an action at law. The specific promise and arrangement in this case, was in these words : “No charge to be made against A. E. Phyfe for keep or training,” and the defendant having failed to keep the promise, and imposed upon Phyfe the charge of keeping the horses for a certain period, it presented nothing but the defendant’s individual legal liability to Phyfe for the expense incurred by the defendant’s non-fulfillment of this specific promise or arrangement (Gale v. Lackie, 2 Starkie E. 107; Neale v. Turton, 4 Bing. 149).
In the present case there was such a personal undertaking. The defendant expressly agreed that Pliyfe was to be at no expense or charge for the keeping of the horses. It was an agreement on his part to keep and maintain them after the copartnership was entered into; he, by the terms of the copartnership,, having the sole control of them, and the action was maintainable to recover the damages which Pliyfe had sustained by the defendant’s non-fulfillment of this express promise, engagement or special arrangement. The liability arising upon it was entirely distinct from the affairs of the partnership, and in no way connected with the prosecution of it as a joint enterprise or adventure.
This being the case, it was not necessarily involved in the action brought for the dissolution of the partnership and an accounting, and the adjustment and settlement of the copartnership affairs by the mutual consent of the parties, in that action,, constituted no bar to this action. This claim might have been included in that suit, at Phyfe’s election, for the individual claims of the partners against each other may, under the Code, at the election of either, be embraced in the accounting and allowed or disallowed in ascertaining the final balance (see More
Joseph F. Daly and Yak Hoesek JJ., concurred.
Judgment affirmed.