Alvord v. Smith

22 Mass. 232 | Mass. | 1827

The opinion of the Court was drawn up by

Parker C. J.

The evidence proves a sale from the plaintiff to the defendants of the share in the distillery. It is an interest in a copartnership and may be transferred without deed, it not appearing in the case that there was any disposition of real estate. This interest may be disposed of by contract of sale between the parties, and an actual enjoyment by the purchaser of the business and profits, without am' further ceremony.¹ We think the certificate not material to the sale, for although by the articles of association it is provided that certificates should be made, and filed by the clerk, yet this is for the convenience of the company, and the omission o it cannot prevent the right of an owner to sell his interest. But even if a certificate were necessary to a sale, the giving of one to Morgan only at the request of the two, is a virtual compliance with the requisition, and is a sufficient execution of the contract of sale. The certificate is not the sale nor the essential evidence.of it. The purchasers, according to the evidence, had the benefit of the contract without the certificate. If Smith had sold his interest in the share to Morgan, and m consequence thereof it was agreed that the certificate should be delivered to Morgan only, this does not disprove a sale by the plaintiff to both of them, nor does the evidence which proves this fact vary from the sale as averred-in the count.²

Nor do we think that the other variance suggested is fa'al. The count sets forth a promise to pay arrearages : the evidence is of a promise to pay these and one hundred dollars. A proof of a promise beyond what is averred, but embracing that also, cannot prejudice the defendant. It is not setting forth a different promise, but failing to set forth the whole, to the prejudice of the plaintiff only. It is in this respect like an action of covenant, in which, though there are many covenants, the plaintiff may sue for the breach of one. Non constat that the other branch of the promise has not been performed. At any rate the plaintiff does not claim any thing on account of it.³

The objection that evidence of the facts upon which this opinion was founded was improperly admitted, cannot prevail. The contract was proved by parol evidence, and not by the certificate, which was only one of the terms of the sale.¹ The sale was made and completed in December or January. The delivery of the certificate was not essential between the parties to complete it. And if Smith had parted with all his right to Morgan after this sale, and in consequence requested the certificate to be given to Morgan, this transaction would not affect the contract with the two, unless it had been proved that the first sale had been rescinded and a second substituted; of which there appears to be no evidence.

Judgment according to verdict.

1 But a stranger cannot be introduced into a firm as a partner, without the concurrence of the whole firm. Collyer on Partn. 4, 647; Kingman v. Spurr, 7 Pick. 237, 238 ; Bray v. Fremont, 6 Madd. 5. But it is said that assumpsit will lie for a breach of an agreement entered into by one of several partners to admit a stranger into the firm, for he is bound to procure the assent nf his co-partners. M'Neill v. Reed, 2 Moore & Scott, 89 ; S. C. 9 Bingh. 68.

2 See Kingman v. Spurr, 7 Pick. 235; Collyer on Partn. 647.

3 See 1 Stark. Ev. (5th Amer. ed ) 397 to 402.

1 See 1 Stark. Ev. (5th Amer. ed.) 440.