Hammond v. Hammond

20 Ga. 556 | Ga. | 1856

By the Court.

Benning, J.

delivering the opinion.

One of the grcunds of the demurrer was, that the bill was barred by the Statute of Limitations; another was, that the bill was barred by the principles of equity relating to stale demands. These two were the only grounds insisted upon in the argument before this Court.

It is very doubtful whether a suit by one partner in a mercantile partnership against the other partners, for an account, is within the Statute of Limitations at all; whether it is not rather within the exception of the Statute — an exception which includes all “ such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants.” See Robinson vs. Alexander, (8 Bligh; Ang. Lim. ch. 15, §§13, 14.)

However, we do not find it necessary to decide this question.

Each member of a partnership is its agent, to do all of its business. A part of the business of every partnership, is the payment of its debts and the collection of its credits. As long, therefore, as there are debts of a partnership to be paid or credits of it to be collected, there is business of the partnership remaining to be done. There may be debts and credits of a partnership existing after a dissolution of it; and as long as there is any business of the partnership remaining to be done, the agency of each partner being, as it is, an agency to do the whole partnership business, continues. Rut as long as an agency lasts, the Statute of Limitations does not begin to run, as to the matters of the agency, between the principal and the agent; therefore, as long as there are debts of a partnership to be paid, or credits of it to be collected, the Statute of Limitations does not begin to run,, as to the account between the partnership and any of its members.

And when the Statute does not run as to the account between the partnership and the members, it does not run as-to the account between one partner and the other; for in reality, that account is between, not one partner and the other,, but between the partners and the partnership. He owes the partnership so much — the partnership owes him so much— not he owes the other partners so much, the other partners-owe him so much. His suit is against the partnership.

In 1847, 1850, 1851, Alfred Hammond, the partner whose-representative is the complainant in the bill, collected debts due the partnership. In 1853, he paid a debt due from it. The bill was commenced in January, 1853; so, that within six years of the commencement of the suit, there had been in existence debts due to and from the firm. Nay more : at the very time when the suit was commenced, there was still outstanding a large note not due, belonging to the firm, on Amos W. Hammond, the partner who is the defendant in the bill.

[1.] It is therefore manifest, that according to the principles above stated, the suit, when commenced, was not barred; by the Statute of Limitations.

And for the same reasons, the suit was not barred by the-principles of Equity relating to stale demands. It cannot with truth be said of the complainant, that “ there has been. gross laches in prosecuting rights or long and unreasonable acquiescence in the assertion of adverse rights.” (2 Story’s JEq. §1520.) One large item in 'the account to be settled, was not due ev.en when the suit was commenced. We affirm tlje judgment of the Court below over-ruling the demurrer.