10 N.H. 15 | Superior Court of New Hampshire | 1838
It was held, in Holton vs. Smith, 7 N. H. R. 446, that an agent, having a general authority to sell as such, has no right to sell the goods of the principal in payment of his own debt. But the authority of a partner is much more extensive than that of a mere agent. It has, however, been held that one partner cannot, even during the existence of the partnership, release a debt due to the firm, in consideration of a debt due from himself individually. 5 Cowen's R. 489, Gram vs. Cadwell. In that case a debt had once existed, due to the partnership, and the question Was whether it had been paid. Another case, in which the facts somewhat more nearly resemble the present, is Dob vs. Halsey, 16 Johns. R. 34. There one partner delivered lum
There is another consideration, which does not seem to have been adverted to in Dob vs. Halsey, but which furnishes a decisive answer to this suit. How is Marckres, who is necessarily one of the plaintiffs, to sustain an action, either alone or with Greeley, against his own contract ? This matter was discussed in Jones, assignee of Sykes & Bury, vs. Yates & Young, 9 Barn. & Cres. 532. Sykes, Yates & Young carried on a trade in partnership, and Sykes was also in partnership with Bury. Sykes, being indebted to the firm of Sykes, Yates & Young, before the dissolution of that partnership, unknown to Bury, indorsed a bill, and paid over money (belonging to Sykes & Bury,) in discharge of the private debt due from himself to the partnership of Sykes. Yates & Young, and immediately afterwards indorsed the same bill to a creditor of the latter firm. The partnership between Sykes, Yates & Young having been dissolved, it was held that Sykes & Bury could not maintain trover against Yates & Young for the bill, nor assumpsit for the money thus paid by Sykes out of the funds of Sykes & Bury, in discharge of his private debt. Lord Tenterden said, in delivering the opinion — “ We are not aware of any instance in which a person has been allowed, as plaintiff in a court of law, to rescind his own act, on the ground that such act was a fraud on some other person; whether the party seeking to do this has sued in his own name only, or jointly with such other person. It was well observed, on behalf of the defendants, that where one: of two persons, who have a joint right
It is hardly necessary to add, that from the facts stated in this case, the assent of Greeley to the contract made with Marckres might well be presumed, even if he had no actual knowledge of the contract itself when it was made. Marckres boarded the persons employed in the shop. He was dependent upon the proceeds of the shop for the support of his family, and of the persons thus employed. Greeley could have hardly expected that the family of his partner, and the hands employed, could be supported, except in the manner disclosed by the case ; and he himself, in two or three instances, made settlements in which accounts against Marckres individually were allowed.
Judgment for the defendants.