4 Paige Ch. 17 | New York Court of Chancery | 1832
The questions in controversy between the parties in this case relate to two items in the account as settled by Hemden, the former partner of Brisban. By the articles of copartnership between Brisban and Hemden, which are admitted by the stipulation in the cause, it appears that •they entered into a limited partnership for the term of five years, commencing on the 10th of October, 1817. During the continuance of this copartnership, the defendants Boyd and Suydam were their agents or factors in the city of New-York. In 1822 Brisban and Hemden shipped 113 bales of cotton from Alabama, consigned to Boyd and Suydam, as commission merchants at New-York, to be sold for the account of the shippers; which cotton was received by them in June of that year. In consequence of a regulation of the board of health of New-York, it became necessary to store the cotton out of the city, and it was accordingly stored at Brooklyn, the usual place of deposit, under such circumstances; where it was soon after burned and lost. The complainant claims to charge Boyd and Suydam with this loss, on the ground that it was their duty to have insured the cotton thus deposited by them in a building which was liable to be destroyed by fire. The cases cited by the complainant’s counsel, in relation to this claim, show that a commission merchant has such an interest in goods consigned to and received by him for sale, that he may insure in his own name to the full
Upon the other question, as to the loss upon the 300 bales consigned to them on joint account, I see no reason to change the opinion expressed by me, in March, 1830, upon the application to dissolve the injunction. By the letter of the 16th of January, 1823, Hernden, acting in behalf of his firm, informs Boyd and Suydam that he has not been able to execute their order for cotton, for the prices at which he was limited by them; that Brisban.and Hernden had therefore drawn on them for money, to be invested in cotton which they had concluded to purchase on their own account; and states that they expected to ship 600 bales or more. But he proposes to Boyd and Suydam to permit him to consider 300 bales on joint account of themselves and Brisbin and Hernden, if they should elect to do so, and should give notice of such intention immediately after the receipt of that letter. That letter was received at New-York about the 13th of February. Boyd and Suydam immediately answered it, consenting to take the 300 bales on joint account, as proposed; and they requested Hernden to designate and mark the cotton on joint account, and to advise them when it was shipped. The moment this proposition was accepted by Boyd and Suydam, and the letter containing that acceptance had been transmitted to Brisban and Hernden, there was a valid contract for a joint adventure in the 300 bales of cotton; which contract neither party had a right to rescind, without the consent of the other. The conn
The cotton having come to a losing market, and that fact not being communicated to Brisban and Hernden, they cannot in equity be bound by any acquiescence in the letter of the 11th of May, 1822, in which letter Boyd and Suydam thought proper to treat it as the sole property of Brisban and Hernden; in
Under the peculiar circumstances in which Hernden was placed, on his return to New-Yorb, I am not prepared to say he would not himself have been entitled to relief against a settlement, in which any of his substantial rights were disregarded. It is not necessary, however, to examine that question in this case, as he is only a defendant in the cause. And the counsel for Boyd and Suydam and of Hernden, upon the hearing, expressly signified to the court that they had no wish to take testimony as against each other, so as to litigate the matter between themselves. Brisban alone appears to be interested in the proper adjustment of the matters in difference between his firm and Boyd and Suydam.
As Boyd and Suydam expressly deny all knowledge of the partnership having terminated, at the time of the settlement with Hernden, in the fall of 1823, if they had sold goods or parted with the property to him as a partner, Brisban might perhaps have been liable to them in the same manner as if the partnership had continued. But after the actual dissolution of the firm, one of the partners cannot bind the other by the acknowledgment of a debt which is not legally or equitably due; or by giving a note for such supposed debt. (15 John. Rep. 409. 4 Mumf. Rep. 215. 9 Cowen’s Rep. 433.) The want of knowledge of the dissolution of the partnership cannot benefit a customer who loses nothing by his ignorance of the fact, and who is only to be placed in the same situation as he would have been if the fact had been communicated to him in season. A customer who sells goods to one of the former partners, on the credit of the firm, and without notice of the dissolution, may have a legal claim against his copartners for the goods sold. But if he was informed of the dissolution of the partnership immediately after the sale, and while the goods remained in his own hands undelivered, a court of equity never would permit him to recover for those goods, against the former partners of the vendee. So in this case, it being established by the written correspondence stated in these pleadings, that one half of the loss on the 300 bales of cotton should have been deducted from the balance due to Boyd
The accounts between the parties must be re-stated, or taken before a master on a reference, for the purpose of ascertaining the balance, if any, which is really due to Boyd and Suydam from the firm of Brisban and Hernden; charging the former with one half of the loss upon the 300 bales of cotton, and rejecting the complainant’s claim for the 113 bales of cotton destroyed by fire. And the question of costs and all other questions and directions are to be reserved until the coming in of the master’s report.