Clark v. Clark

4 Port. 9 | Ala. | 1836

HOPKINS, J.

— In this case, the parties had been partners in the mercantile business. Several months after the partnership had been dissolved, they made an agreement, under their seals, which required the plaintiff in error co pay all the demands due, or to become due, from their late firm ; exclusively to bear all its losses; to discharge the defendant from his private account upon the books of the firm ; and to pay the debts which Marshall Clark had contracted, for making some improvements on a lot in the town of Florence — the right to which was relinquished by the defendant in the agreement to John C. Clark. The defendant relinquished, also, to the plaintiff, by the agreement, all his interest in the business of the late firm — bis right in all the notes that belonged to it — to a share of the profits, and to all accounts which were due upon the books of the firm.

The bill, in the case, was filed by John C. Clark, upon the ground that the defendant had not delivered to him all the notes, accounts, effects, and deeds, which belonged to the firm ; and prayed that the defendant might be decreed to account for the amount of the sales made by the firm ; of the merchandize which had belonged to it, according to the books of the firm; and to pay the deficiency between such amount, and that which the complainant had received.

It is not the object of the plaintiff in error to rescind the agreement. He does not allege that the defendant obtained it by fraud; nor are there allegations of his insolvency; and that he would, if not restrained by the exercise of the power of a Court of Equity, collect the notes and accounts of the late firm.

For any violation of the agreement, he is clearly entitled to a legal remedy; and the bill states nothing to show that,the remedy at law would not be as effectual as any which a Court of Equity could afford.

By the agreement, each party is bound to the other in the penal sum of one thousand dollars, for the performance of every thing required of him. If the penalty be less than the sum at which the plaintiff estimates his damages, the same rule of law that determines the question, whether any sum bey°ud the penalty can be recovered, is recognised by a Court of Chancery.^a

are °pj-u*oa that the bill was properly dis.missed for want of jurisdiction.

Let the decree be affirmed.

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