Leidy v. Messinger

| Pa. | May 13, 1872

The opinion of the court was delivered, by

Williams, J.

The plaintiff and defendant jointly purchased a share of stock in the La Fayette Oil and Mining Company, an unincorporated association formed for the purpose of buying oil and mineral land in West Virginia. The price of the share was $1000, for which the plaintiff below paid the treasurer $500 in cash, and the defendant gave him his note for a like amount endorsed by the plaintiff. The treasurer applied the money and the note to the payment of the purchase-money of the property bought by the association. The note was endorsed to the vendor before maturity, and was in the hands of his attorney for collection at the time of the trial. The company became “ defunct and insolvent,” and this action was brought by the plaintiff to recover from the defendant the one-half of the amount which he had paid on account of the stock. The court below instructed the jury that if the evidence was believed, the plaintiff was entitled to a verdict; and the correctness of this instruction is the main question presented by the record.

Admitting that the stock was purchased in partnership, as alleged, what right has the plaintiff to recover of the defendant the one-half of the amount which he paid for his moiety of the share, so long as the defendant is liable for the note given for his half? It is clear that if the defendant had paid the note, he would not be responsible to the plaintiff for any part of the money claimed in this action. Why then should he be bound to make contribution so long as he is liable for the note ? If the plaintiff can recover, then the defendant, on the payment of the note, may recover the half thereof from the plaintiff. The defendant’s liability, if any, for the money claimed in this action, does not arise from any express promise or undertaking on his part. There is no evidence that it was paid at his request and upon his promise to repay it. If he is liable for it, his liability depends solely on the obligation arising from the partnership relation created by the joint purchase of the stock. But a partner cannot maintain assumpsit against his copartner to recover the excess of his advances, unless there has been a settlement of the accounts and a balance has been struck. And this rule applies whether the subject-matter or property of the partnership has ceased to exist or not. It would beget an intolerable multiplicity of suits to allow one partner to sue another for contribution as often as he paid moneys or made advances on account of the partnership. To prevent such burdensome litigation, the law has wisely provided that the partnership accounts shall be settled in one proceeding either by an action of account render, or by bill in equity, and that, in the absence of an express promise to repay, assumpsit will not lie by one partner against another to recover for advances, until there has been a settlement of the partnership accounts. It follows that under the evidence the court should have instructed the jury that the plaintiff was not entitled to recover. This view of tide case renders it unnecessary to consider the other assignments of error.

Judgment reversed.