33 Ga. 243 | Ga. | 1862
Jenkins, J., delivering the opinion.
In this case each party excepted to certain rulings of the Court below.
' “The statutes expressly confine the right of set-off to cases in which there are mutual debts, and it is, therefore,
“ A joint debt and a separate debt cannot be set off against each other.” Montague on Set-off, 25.
“ This is evident, and may be collected from all the decisions on set-off in the case of joint debts and several debts.” Ibid, note 2, g.
“ A note of one of two partners cannot be set-off against a partnership demand.” 4 Wend’s R., 583.
And for the same reason a debt due to one partner cannot be set-off against a debt due by the partners.
“Under the Bankrupt Law of the United States, a joint debt may be set-off against the separate claim of the assignee of one of the partners. But such offset could not have been made at law independent of the Bankrupt law.” 5 Cranch, 34.
Where one of tofo partners dies, and the survivor sues or is sued upon a partnership demand, set-off of a separate debt is allowed, expressly upon the ground -that the right of survivorship, accruing upon the death of one partner, converts that which was originally a joint, into a several debt. Slipper, Assignee of Lane, vs. Stidstone; 1 Esp. Cases, N. P., 47; 5 T. R., 493. French vs. Andrade, 6 T. R., 582. These cases, as well as Fletcher vs. Dyke, 2 T. R., 32 ; and Stacey, Ross et al. vs. Decy, 7 T. R., 359, (which for other reasons were excepted from the rule,) all go to affirm the general rule upon which we place this decision, viz: that a separate debt cannot be set-off against a partnership debt, nor a partnership debt against a separate debt. There is nothing in the case at bar to take it out of the operation of the general rule.
The plaintiff in error relied upon the case of Webster vs. Scales, referred to in note 2, to the text in Montague on Set-off, 27. But it will be observed that the text, supported by this reference, does not at all involve the rule governing the case at bar.
This is the text supported by Webster vs. Scales, and other, cases mentioned in note 2, n. In all of the cases, the question was simply whether, at law, the Court could look beyond the legal title of the trustee and recognize the equity of the cestui qui trust, for tire purpose of allowing as a set-off a debt due by the cestui qui trust to the defendant, and in such case the set-off was held to be good. But there, there was no lack of mutuality. The suits were prosecuted for the benefit of the cestui qui trusts, and the debts, attempted to be set-off, were due by the cestui trusts. There was mutuality. The legal title of the trustee alone stood in the way, and Ash- . hurst, Judge, in Webster vs. Scales, remarks: “it is true, that formerly the Courts of law did not take notice of any equity or trust; but of late years, as it has been found productive of great expense, to send the parties to the other side of the hall, (to equity,) whenever this Court have seen that the justice of the case has been clearly with the party, they have not turned him round upon this objection.” In the last remark, (referring to the justice of the case,) is disclosed the use sought to be made of it. The plaintiff in error insists that inasmuch as, in this suit, the other party seeks to enforce a statutory lien upon property of the Dalton City Company for a debt of R. K. Ford, that Company is, in equity,, entitled to the set-off.
But here again the plaintiff in error begs the question of partnership, which the Court cannot concede. To that question we now come.
The plaintiff in the Court below excepts to that portion of the charge to the jury which instructed them, that the written agreement between Rufus K. Ford and the Dalton City
In that case, the owner of the slaves was to receive, by the terms of the agreement, “ one-half of the nett proceeds of the shop, (a blacksmith’s shop) for the use of the negroes.”
In this, by the agreement, the owner of the real estate and machinery was to receive, “ as rent for the year, one-half the nett profits of the business.” Here is great similarity. In each case nett profits are specified, and it is stipulated in what proportion they are to be divided. In one case the owner of the slaves is to have one-half the nett profits “ for the use of the slaves,” (in other words, for their hire.) In the other, the owner of the premises was to have one-half the nett profits “ as rent,” for them. In each case, the party not owning the property, to be employed in the business contemplated, was to conduct it personally.
In the case of Buckner vs. Lee, et al., this Court held that the agreement constituted a partnership, and not a contract of hiring. But there are in this case certain distinctive features.not appearing in that, which deserve consideration. It was stipulated in the agreement before us, that the lease was to determine upon the'death of Ford, and not to pass to his executors or administrators;, that during his life, it shall not be assignable; that only a certain kind of work shall be done in the mill; that Ford shall put in certain specified machinery additional to that already there, which shall be paid for out of the gross profits; that books shall be kept by Ford, showing a correct account of all the transactions of the mill, which shall be posted weekly, and at all times open to the inspection of the other party; that if necessary a bookkeeper shall be employed, but the other party shall have a voice in the selection of one.
In Buckner vs. Lee, Judge Nisbet, summing up the authorities there cited, (to which I refer, without enumerating them,) says, “it is clear, then, that if one is to receive a certain proportion of profits, as one-third, or one-half, as profits, he is a partner. If a certain sum is agreed to be paid out of profits, and the party does not look to that fund alone for payment, he is not a partner; but if the sum to be paid is not fixed, but may be increased or diminished by the amount or accidents of the business, then the receiver is a partner.” Applying these rules to the agreement before the Court, it is manifest that the Dalton City Company must occupy the position of partners. What is the sum fixed to be paid to them ? If, at the end of the year, the income and expenditures exactly balance, showing no nett profits, what
Y/e hold, therefore, that in the portion of the charge excepted to by the'plaintiff below, the Court erred.
Let the judgment be reversed.