No. 2 | Pa. | Oct 6, 1877
delivered the opinion of the court, October 15th 1877.
Suit was brought against the plaintiff in error and others, as owners of the steamboat Glasgow, for work and materials furnished to the boat. The debit side of the account is composed of several items, commencing March 27th 1867, and ending January 12th 1870; and credit is given for five payments of $200 each on account.
It was shown by the bill of sale, acknowledged and recorded as required by the Act of Congress, that on the 21st of March 1868, Adams, the plaintiff in error, sold his interest in the boat to Collins ; and it was contended that he was not liable for any of the articles subsequently furnished. In refusing to affirm defendant’s first point, the court instructed the jury that the sale was “ notice to all the world except parties who had been trading with and keeping an account at home with the boat,” and said, in substance, that, in regard to the necessity of giving notice to those with whom they have had previous dealings, the joint owners of a steamboat, “ do not differ from an ordinary partnership.” In this we think there was error.
When no other relation exists between the shareholders of a steamboat than that which arises from the joint ownership, they are not partners, nor is their liability measured by the rules of law which are peculiar to the partnership relation: Hopkins v. Forsyth, 2 Harris 84. It is true they may become partners in a trade or business in which the boat is employed; but, when it is claimed that such relation exists, it must be averred and proved by competent testimony. It cannot be inferred from the joint ownership alone. In this case it does not appear that the interests of the owners were connected with any thing else than the boat itself. They were sued as joint owners and not as partners. The rule requiring notice of dissolution to be given to those with whom the copartnership has had dealings, has never been extended to a change in the ownership of a steamboat or other chattel. It was not incumbent, therefore, on Adams to notify the plaintiffs that he had disposed of his interest in the boat. The transfer was made in the manner prescribed by the Act of Congress, and nothing more was necessary to relieve him from liability for goods subsequently furnished to the boat.
The defendant’s second point was properly refused. There appears to be but one credit prior to the change of ownership. The other payments were dated afterwards, and, if they were not made by the defendant or on his account, he has no right to have them applied to that portion of the debt which was contracted while he was a joint owner of the boat.
To constitute mutual accounts there must be mutual demands. Each party must have a demand or right of action against the other. The exception in the statute has no application when the demand, as in the present case, is altogether on one side, although payments on account have been made: Ingram v. Sherard, 17 S. & R. 347; Lowber v. Smith, 7 Barr 381. Eor aught that appears in this case the statute commenced to run from the date of the last item in the account prior to the sale of defendant’s interest in the boat, and the jury should have been so instructed.
Judgment reversed, and venire facias de novo awarded.