Bullard v. Kinney

10 Cal. 60 | Cal. | 1858

Burnett, J., delivered the opinion of the Court.

The only question arising in the case is, whether the plaintiff can sue in this form ?

There was nothing in the constitution of this company which regulated the remedies of the shareholders, as between themselves; and, therefore, the general law of partnership must prevail. (Collyer, § 1115.) There having been no final settlement of the partnership accounts, and no balance struck, and no express promise on the part of the individual members to pay their ascertained portion of this amount to Sotzen and Goodnow, they could not maintain assumpsit. As they could not sue, it is difficult to see how their assignee could do so. To permit a partner, who has a claim against the firm, and who can not, therefore, sue the firm at law, to avoid this disability by assignment of the debt, would defeat all the substantial reasons upon which this rule is predicated. This rule rests upon three grounds :

1. The technical ground, that a man can not, at the same time, in the same suit, be both a plaintiff and a defendant.

2. Because it would be useless for one partner to recover that which, upon taking a general account, he might be compelled to refund; and thus a multiplicity of suits be permitted, where one would answer.

3. The contrary rule would defeat the equitable right of the other partners to set-off their advances against those of plaintiff, and would force them to first pay the amount, and then rely upon the individual responsibility of the partner for a return of his proportion.

The first ground being merely technical, may be considered as not so material under our system of pleading; but the other two grounds are substantial in their character. There is another objection that arises under the attachment law, as it then existed. Sotzen and Goodnow could not resort to the harsh remedy by attachment; but their assignee could, if he could maintain this suit. Such a remedy was not contemplated by the parties at the date of the transaction, and can not be invoked by the single act of one.

Judgment affirmed.

Field, J.—I concur in the judgment.