Le Page v. McCrea

1 Wend. 164 | N.Y. Sup. Ct. | 1828

By the Court,

Woodworth, J.

The plaintiff declared in assumpsit on the money counts. It appeared that the defendant and John Slidell, junior, were partners, and on the 11th September, 1820, made an .assignment of their property to trustees, for the benefit of their creditors, containing a proviso, that the creditors within one year assent to come in. under the assignment, and agree to accept the individual responsibility of each partner for one half of their demands, and release the other half, engaging to look to each partner for a moiety of their respective demands. In the assignment, the plaintiff’s debt is stated at $2727 96.

The defendant proved, that on the 25th October, 1825, the trustees paid to Slidell $1449 90, on a dividend on plaintiff’s debt. This appears to have been done under the following authority: On the 18th June, 1821, the plaintiff gave a letter of attorney to one Delonguemare, to receive all monies due from McCrea and Slidell, to give acquittances, to compromise, conduct suits, and make substitution, &c. On the 8th December, 1823,vDeIonguemare substituted Slidell as attorney in his place. It appeared, that on the 26th September, 1823, Delonguemare received from Slidell the note of John Slidell & Co. for $1200, at 60 days, to the order of John Slidell, junior, and gave a receipt, stating that when paid, Slidell was to be substituted for Delonguemare as the attorney of the plaintiff, to recover of McCrea and Slidell, or the trustees, the plaintiff’s debt; it being understood, that on payment of the note, Slidell was entitled to recover and receive the debt from McCrea and Slidell to his own use, the note being given on a settlement by way of compromise.

On the 14th October, 1820, an instrument was executed by the creditors, including the plaintiff by his attorney Delonguemare, reciting the assignment, and agreeing with MeCrea and Slidell to come in under the assignment, and accept the individual responsibility of each of the partners, for a moiety of their demands, after the final dividend of the estate by the trustees; and by the said instrument released all their demands beyond a moiety. It also contained a covenant that McCrea and Slidell, each for himself, and not jointly, should take upon themselves individually a moiety of the co-partnership debt, and to pay each the one half, and not to set up their joint liability in law or equity. This instrument was produced by the plaintiff, but it does not appear to have been executed by McCrea and Slidell, or either of them. It also appeared, that on the 24th October, 1822, the defendant presented a petition to the recorder, under the act for giving relief in cases of insolvency, in which the plaintiff’s debt is stated at $1150, being one half of the debt due by McCrea and Slidell, deducting the plaintiff’s interest arising from the assignment.

By the instrument bearing date October 14, 1820, the creditors agree to accept the individual responsibility of each partner. It was contemplated that each partner should become individually bound. In what manner thejr were to obligate themselves, and at what time, is not stated. Until the partners had given their individual security, it appears to me there was no severance, but the demands of the creditors were against McCrea and Slidell jointly. There is no evidence that they ever assumed the payment of a moiety individually. The creditors also release each of the partners of all their demand beyond a moiety. The intention appears to have been, that as to a moiety of the debts, the creditors were willing to accept whatever dividend might be made under the assignment, and for the residue look to the partners separately. The creditors only executed the instrument. I do not therefore perceive that an action could be maintained on this covenant against either of the partners. If they had executed the instrument, the proper action to recover a moiety would be on the covenant. Its execution by McCrea and Slidell would necessarily have merged the original contract. If, then, this action can be defended, it must be on other grounds.

It has been correctly said, that the non-joinder of all the parties, is matter for a plea in abatement. It remains, then, to decide the effect of the settlement made between Slidell and Delonguemare, the attorney for the plaintiff

Ori the 26th September, 1823, a compromise takes place, and a receipt is given to Slidell for a note of $1200, which has been paid. It was given on the settlement of the claim of the plaintiff byway of compromise; or, in other words, Delonguemare received $1200, as the full amount of the plaintiff’s claim.. It will be remembered that at this time the plaintiff’s demand must have been against the partners jointly, for there had been no individual assumption of the debt The receipt shows the inducement that Slidell had for making this arrangement: "Slidell was to be substituted in the place of the plaintiff, and receive to his own use whatever could be collected of the debt, and accordingly on the 8th December, 1823, he was substituted, by a power of attorney from Delonguemare, and by virtue of that power, on the 29th October, 1825, be received a dividend of $1449 90, and now seeks to recover in the name of the plaintiff the moiety which was to have been received an the individual responsibility of the. partners. This cannot be done. The acceptance of the note, and payment of it, was a good accord and satisfaction. Here the note of third persons (John Slidell & Co.) was given, accepted and paid; and although it be admitted that it was for a less sum than . the debt, was nevertheless a valid discharge. The case of Boyd & Suydam v. Hitchcock, (20 Johns. R. 76,) fully supports this doctrine. The plaintiff then, has received satisfaction, and discharged his debt. After this, it was not competent for him to authorize the partner paying, to keep the original demand alive, and enforce it by action in the plaintiff’s name against the other partner.

The rnolion to set aside the verdict is denied.