23 N.H. 245 | Superior Court of New Hampshire | 1851
Tbe finding of tbe auditor, in this case, presents tbe claims of tbe plaintiffs, and tbe questions arising upon tbe same, under two beads, and we shall consider them in tbe order stated.
In tbe first place, .the report finds due tbe plaintiffs, on tbe fourteenth of August, 1847, for goods sold and delivered to tbe defendants, prior to that time, tbe sum of $340.84. At this time, John J. Duncklee was a member of tbe firm of J. J. Duncklee & Co., tbe plaintiffs, and also one of tbe directors of tbe Steam Mill Company, tbe defendants. Tbe firm consisted of Duncklee, and John Jones. Duncklee could transact business in a three-fold capacity; as a member of tbe partnership, as a director in tbe corporation, and as an individual.
On that day, the directors of tbe Steam Mills, made a note to tbe New-Ipswicb Bank for $2500, signed by them jointly and severally, in their individual capacity, and at tbe same time agreed that if tbe money could be procured from tbe bank, tbe debt due tbe plaintiffs should be paid. This note, tbe auditor finds, was taken to tbe bank, and tbe money procured thereon, by Duncklee, “ as one of tbe directors ” of tbe Steam Mills. Tbe fact does not appear in tbe report, but probably, after tbe note was signed by tbe directors, as individuals, some arrangement was made by which it became tbe property of tbe corporation. Of this money procured at tbe bank, as we understand tbe facts, about $265.00, and no more, were paid over by Duncklee to tbe plaintiffs, and credited on their books. This sum together with some other small items of set-off, being allowed, would leave $72.16 of tbe $340.34, unsatisfied, and now due; unless tbe receipt of tbe money at tbe bank, by Duncklee, under tbe agreement, before the note was discounted, that tbe plaintiffs’ debt should be paid, can operate as a payment of tbe whole sum then due. And we think it cannot. Duncklee took tbe note to the bank, as agent of tbe directors. They entrusted him with
We will now pass to the consideration of the second general matter stated by the auditor. Subsequently to the fourteenth of August, 1847, and prior to the twelfth of November, following, the plaintiffs sold, and delivered to the defendants, goods to the amount of $486.45 ; and the defendants paid towards the same, on the eight of October, 1847, thirty dollars ; leaving a balance of $406.45, due the plaintiffs. In the early part of October, the Steam Mill Company appointed auditors to settle the accounts existing between them and Duncklee, and he at that time presented the claims of Duncklee & Co., to account for the funds of the defendants in his hands. It appears that Duncklee was, at that time, indebted to the Steam Company, over and above the account of the firm, but no settlement was then made. On the twelfth of November, 1847, Duncklee and John Jones, the ¡fiaintifis, assigned the claims they had against the Steam Company,,
At the time the auditors met, no settlement was made of the accounts between Duncklee and the corporation, or the partnership and the corporation, and no adjustment had taken place up to the time of the assignment. It was perfectly competent for Duncklee and Jones to make the assignment, and the act of Duncklee in executing the discharge at a subsequent time, although the receipt bore a previous date, was entirely nugatory.
The questions presented by the report are quite as much matters of fact, as of law, but in whatever light we view them, we
Judgment for the plaintiffs.