Kull v. Thompson

| Mich. | Apr 16, 1878

Cooley, J.

The defendants in error brought action in the court below on an agreement in writing by which the firm of C. Kuhl & Sons, the plaintiffs in error, promised to pay Korb & Co. seventy-five barrels fine salt, on demand, at $1.10 per barrel, and which was dated October 27, 1876. Plaintiffs claimed the demand under an assignment made to them November 3, 1876. The assignment appears to have been made by an agent of the co-partnership of Korb & Co., with the consent of one of the members, to apply on a demand against said agent and the partner assenting, and there was no evidence that the other partners assented. The defendants insisted that, for want of the assent of all, the assignment was invalid. But the objection only goes to the sufficiency of the consideration as between the partnership and the assignees, and is not, as we think, to be taken by any others than the partners themselves. If in fact the assignment was unauthorized, the partnership may call the plaintiffs to account, but third persons cannot contest a transaction which is perfectly good if the partners acquiesce in it. If defendants denied such acquiescence, they should have produced the evidence.

Defendants also relied upon a set-off against Korb & Co. The set-off was for a car load of salt sold to Korb & Co. for cash November 1, 1876, but for which a sight draft was taken, which would not fall due until November 4, the day after the assignment was made. This draft was subsequently returned, and a new one taken therefor, but that fact is immaterial. We think the court was right in holding that there was at the time of the assignment, no demand which was the subject of set off.

The judgment must be affirmed with costs.

The other Justices concurred.