6 Ala. 337 | Ala. | 1844
To maintain the action for money had and received, it is said that it must be proved that the money
The aetion in the present case is in form ex contractu, and if the defendant were to die before judgment, it might at the option of the plaintiff, be revived against his personal representatives; yet, if the defendant was to resign his administration, be removed or die, the deposit now in bank would become subject to the check
Again; to entitle the plaintiff to recover, conceding that his action is maintainable, should not the proof show, that the entire sum for which it is sought to charge the defendant, was the money of Hammond & Marlow, kept separate and distinct by the intestate, so as to be susceptible of identification. If the receipts of one member of a firm have been so commingled with his own cash, that they cannot be followed or distinguished, he is considered as having converted them, and is chargeable pro tanto in an account with his co-partners. And if such is the fact in respect to the money in question, an action for money had and received, would not lie against the defendant, although the money had actually come to his hands; for in such case he would have received it, not for the use of the plaintiff, but to enable himself to administer his intestate’s estate. [Kip v. The Bank of New York, 10 Johns. Rep. 63.]
It is true, the defendant is not sued as administrator, yet, as he is sought to be charged in virtue of the rights which are conferred upon him as such, we will inquire whether, as the representative of Hammond, he is suable at law upon the case stated in the bill of exceptions. It is said, that on the death of one partner, the survivor is entitled to all the choses in action, and other evidences of debt belonging to the firm. They must be collected in his name; and he is entitled to the exclusive custody and control of them; the books of account are incident to the debts or choses in action; and whoever is entitled to the one, is of course, entitled to the other. The right of action may be said to be transferred to the surviving partner in relation to partnership demands; but he is liable to account to the representatives of his deceased co-partner. [Murray v. Mumford, 6 Cow. Rep. 441; Case v. Abeel, 1 Paige’s Rep. 398; Egberts v. Wood, 3 id. 526.] And upon the ground that the legal rights and liabilities of the firm are devolved upon the surviving partner, it has been decided that he may main tain detinue against the representatives of the deceased partner
But assuming that the plaintiff could make it appear that the money was the property of the partnership, and had not been converted, so as to prevent it from being distinguished from other cash of the intestate, and no action at law can be supported. It has been so often decided as to be no longer disputable, that an action of assumpsit does not lie by one partner against another, unless the partnership accounts bo settled, and a balance struck. [Oseas v. Johnson, 1 Binn. Rep. 191; Carey v. Brush, 2 Caine’s Rep. 298; Andrews v. Allen, 9 Serg’t & R. Reps. 241; Westerlo v. Evertson, 1 Wend. Rep. 532; Williams v. Henshaw, 12 Pick. Rep. 378; Hobart v. Howard, 8 Mass. Rep. 304; Niven v. Spickerman, et al. 15 Johns. Rep, 401.] The law upon this point is laid down by a text writer of high authority, thus: “When money is duo from one partner to another, by simple contract on the partnership account, payment except in a few special cases, can only be enforced by application to a court of equity, upon a bill filed for an account, and a dissolution of the partnership. Courts of law will not entertain suits of this nature, because it would be useless for one partner to recover what, upon taking a general account amongst all the partners, he might be liable to refund: frustra peterit quod mox restiturus esset. [Collyer on Part. 143. See, also, Grigsby’s ex’r v. Nance; 3 Ala. Rep. 347.] The rule, it is true, may be said to have its exceptions, but the mere dissolution of the partnership, whether by death or otherwise, docs not make it inapplicable; and a debt due from a deceased partner, as a partner, or money in hand at the time of his death, can no more be recovered of his administrator than it could of the intestate. To such a case, the reason of the rule applies with all 'force. Upon the assumption that Hammond was only liable to the plaintiff for the money of the partnership received by him, as for a debt, we think it necessarily follows, that the action was misconceived.
Without attempting to consider with particularity the ruling of the county court to the jury in the charges given and refused, it may be remarked, that it will be obvious upon the slightest examination, that the law was expounded differently from what we have laid it down. The consequence is, that the judgment is re» versed, and the cause remanded.