75 Me. 252 | Me. | 1883
If the two members of a mercantile partnership, one of whom being a dormant partner, should divide their partnership effects and dissolve, and he in whose name the business had been done should thereafter continue business, at the old place, on his own account and the dormant member should remove his goods into a new store and there do business on his private account, and the written agreement of their dissolution should stipulate that the latter should repay to his former associate a certain proportion of all debts and liabilities of the firm which the latter should pay, the cause of action under the written stipulation would arise whenever payment should be made upon one of the debts and not when the written agreement was executed; and the statute of limitations would begin to run between the parties at the same time. Perkins v. Littlefield, 5 Allen, 370. And if a creditor of the firm should keep his claim alive by reducing it to a judgment and the judgment should be renewed years after the original cause of action was barred, still the statute of limitations would not begin to run between the old partners under their express agreement, until some payment be made by the payee. This is the familiar rule between co-sureties, joint contractors and principal and surety. See authorities in plaintiffs’ brief. And we think the samé principle is applicable to the case at bar; section two of the act of separation should receive the same construction as the supposed stipulation in the agreement for dissolution. By the previous section, the defendants were to receive more than one-half of the valuation of Mt; Desert, and the legislature deemed it equitable that the new town should bear a corresponding-proportion of the burdens of the old. One of the liabilities ripened into a judgment against Mt. Desert in 1850 and was kept alive until 1876, when the plaintiffs satisfied it, the payment having been made within six years next before the date of this
2. It is apparent from an inspection of the original award and the bill of particulars annexed thereto, that the claim involved in this action was not submitted to the referees; and hence, although the submission in terms embraced " all demands between the parties, ” this claim not having been considered by them, their award is no bar to this action. Bailey v. Whitney, 5 Maine, 192; King v. Savoy, 8 Cush. 309.
8. The certificate of the selectmen of Mt. Desert, dated December 20, 1852, cannot be considered as embracing the claim in suit; for it only professes to speak in relation to "bills for the year 1852.” And if it might by its terms have covered this claim had it existed, it did not then exist.
4. By the terms of spec. st. 1848, c. 98, § 2, the defendants were holden to pay the plaintiffs " such proportion of the debts and liabilities of Mt. Desert, beyond their then existing resources, . ... as the last valuation of the portion set off bore to the whole valuation of Mt. Desert, ” which is admitted to be in proportion of 56 to 100. We cannot think that the resources of Mt. Desert were not deducted out by the referees (one of whom was Mr. Woodman) when the judgment of October 5, 1852, was recovered. That was when a general settlement took place between the parties and it was only four years after the separation.
Judgment for plaintiffs for ‡672 and interest from Jime 1, 1876.
