Burns v. Pillsbury

17 N.H. 66 | Superior Court of New Hampshire | 1845

Gilchrist, J.

It is said that the money received by the plaintiff from Purdy after the dissolution of the firm should have been earned to the credit of the firm, and not to the credit of Purdy’s account. This, if so, must be upon the ground that it was the money of the firm, or else upon the ground that the plaintiff had agreed to take Purdy alone for his debtor, and release the defendant, who was his partner in contracting the debt.

Of any express agreement to make such an exchange there is no evidence whatever in the case, nor does there appear to be any thing to take this particular instance of renewing a business with a member of a dissolved copartnership out of the general rule applicable to such cases. This is stated by the authorities to be, that transactions accruing after the change of a firm, by death or otherwise, are primti facie deemed to be the independent transactions of the new firm ; Pulling on Mercantile Accounts, 52; Story on Part., sec. 156; and the mere striking the balance due from the old firm, and carrying it to a new account, opened with the new firm, will not alone extinguish the original debt against the old firm, unless accompanied by other circumstances which establish that a new and exclusive credit is given to the new firm. Story on Part., sec. 156. Whether there has been an agreement between all the parties, that such exclusive credit shall be given to the new house, is a question of fact for the jury; Thompson v. Percival, 5 Barn. & Adol. 925; and the various circumstances that have been the subject of comment, as bearing upon the question, must be regarded, in reference to a case like the present, as evidence to go to the jury from which they may or may not infer that the new firm has been adopted in the place of the old as a debtor. In the case of an old banking-house, like that which was the subject of Lord Mansfield’s observations in Barclay v. Lucas, 1 T. R. 291, n., and which also occurred in the case of Simson v. Ingham, and of Hart v. Alexander, upon which the remarks of Mr. Justice Story appear to have been founded, which are relied on in the argument, (Story on Part., sec. 157) the evidence of the change of credit would be less, that would be required to satisfy a jury, than in an ordinary commercial partnership of recent origin.

In such a case as that of one of those banking-houses, which, as Lord Mansfield remarked upon the occasion referred to, “ continue for generations,” which can be effected only by a constant succession of partners, if one retires, he does so of course upon some adjustment with the house, by which he is permitted to take with him an equivalent for what would belong to him if the house were to go into a liquidation of its affairs; and he leaves, of course, what is supposed to suffice for the discharge of all its liabilities, which are first provided for, and subject to which his own just share in the capital is ascertained. In such a case, there would of course be a fitness in appropriating any remittances which the house might make to a creditor who continues his relations with the firm, to the satisfaction of balances due at the dissolution. This would -be but justice to the retiring partner, as was said in the case of Thompson v. Percival, before referred to. But there is no ease that goes so far as to say that, in the absence of a specific application of the money when paid, it is not a matter of option with the creditor to apply the money to which debt he pleases, provided he signify that option promptly.

But there is no evidence whatever in this ease that brings it within scope of the reasons applicable to such cases. This is not so much the retiring of a partner as it is the dissolution of the firm. There is no evidence that the pai’tner who remained to continue the trade had stipulated with the defendant to provide for the debts they owed in common, or that he received any consideration for so doing; or that the body of the funds of the firm remained with him in sufficient amount to lay the foundation of any equitable obligation on him to do so ; and the case is, thefefoi’e, not one of those in which slight indications should prevail, of an agreement on the part of the plaintiff to adopt the new concern in the place of the old as his debtor. The insti-uctions of the coux-t on this head were, therefore, in our judgment, open to no just exception.

Upon another ground, however, the verdict must be set aside. The undertaking of this defendant and his partner was, to account for and pay over to the plaintiff the proceeds of the sales of whips. An account has been accordingly applied for, and has been exhibited. There is no pretence that it was otheiwise than coi’rect. But no demand' has been made of the payment of the balance due, and without such demand an action cannot be maintained upon such an undertaking. This subject is fully considered, and the authorities cited, in Cooley v. Betts, cited by the defendant’s counsel, 24 Wend. Rep. 203. The court in that case conclude, in hax’mony with those authorities, that there must be a demand, or instructions to remit, before an action can be maintained upon the contract to sell on commission, and to account and pay-over the proceeds.

For error in the ruling of the court on this point the verdict must be set aside, and a

New trial granted.