7 La. 96 | La. | 1844
The petitioner represents, that for the term of eight months previous to the 23d of September, 1837, he had engaged with the defendant in a commercial partnership at Tampa Bay, in Florida ; that on that day the partnership was dissolved, and certain articles of dissolution were entered into, whereby the plaintiff was to discharge all the debts due by the firm at Philadelphia, and to pay to the defendant eight thousand dollars in ready money, which sum he has paid ; that in consideration thereof, the defendant transferred and conveyed to him all the effects and property of the partnership, real and personal, rights, credits, &c.; and moreover, bound himself as surety for the faith
There was a judgment below, in favor of the defendant and plaintiff in reconvention, for the sum of $4868 48. The plaintiff has appealed.
The facts of this case are, in substance, that some time in the beginning of 1837, the plaintiff, having obtained a sutler’s commission for selling goods to the volunteer troops and others at Fort Brooke, in Florida, entered into a partnership with the defendant, who was a merchant doing business, and enjoying good credit in Philadelphia. The purchases were principally made in the latter place by the defendant, Joseph Burr, Senior, his father, and Joshua Burr, his brother, and sent out to the plaintiff, who remained at Tampa Bay, selling the goods, and making remittances to his friends in Philadelphia, from time to time. This partnership lasted about eight months, during which, a large and profitable business appears to have been done. No articles of partnership were drawn up between the parties, and no regular accounts or set of books appear to have been kept.
On the 23d of September, 1837, a dissolution of the 'partnership was agreed to. The difficulty of making a regular settlement of their affairs probably suggested the proposition made by the defendant, of a sale by one of the partners to the other of his interest in the concern. This proposition was reduced to writing in the form of a give or take offer ; and was accepted by the plaintiff, who agreed to become the purchaser of the defendant’s interest in the firm, fpr the sum of $8000 ; to pay all the partnership debts owing in Philadelphia and its vicinity, on or before the 5th of April, 1S38 ; and to give bond and security for the fulfilment of this obligation. It was stipulated, that if either party should, upon a careful examination, be found to have more capital in the concern than the other, the same should be made equal by the latter paying such a sum as should make the capital of both equal. It was further agreed, that should J. Lynch become the purchaser, Joseph Burr, Jr., should hold himself accountable to
Before drawing our attention to these points, the appellant complained, that the inferior Judge totally disregarded testimony offered to prove a guaranty on the part of the defendant that the Philadelphia debts did not exceed $4500. The court, in our opinion, did not err. The articles of dissolution, while they oblige the partner who should become the purchaser to assume the partnership debts, do not limit the amount of those debts; and neither the deed of mortgage, nor the bond executed in pursuance of this clause, mention any such condition or restriction. The proposition of the defendant was in the form of a give or take offer, and would have bound him to the payment of all the debts in the sam,e manner as it binds the plaintiff, had he been the purchaser. The plaintiff knew, moreover, from his invoices, what goods had been purchased. He knew how much money had been sent to Philadelphia; and was probably, quite as capable
The clause in the articles of dissolution of the 23d of September, 1837, for equalizing the capitals of the two partners, refers evidently to the comparative state they were in at that time ; for it seemed to be a matter of doubt whether there existed any inequality at all, which could not have been the case had the original capital put in by each partner been in contemplation. The plaintiff, who brought this action on the articles of dissolution, does not complain in his petition of any inequality of capital, nor does he claim any thing by reason of such inequality. This agrees with the defendant’s first answer, which, after asserting that the original capital furnished by him amounted to $7195 05, and that of the plaintiff only to $1936 05, admits that he did withdraw certain sums charged to him in his account of capital stock, which left the capitals about equal. An account book of the partnership, the only one produced in evidence, appears to have been used by Lynch for his own affairs after the dissolution. It is blotted and altered in several places, both parties having subsequently made entries in it. So far as its situation in September, 1837, can be ascertained, it shows the original investments to have been as stated above; and the several sums taken by and charged to the defendant, to have amounted to $5335 25.
In addition to the sum of ,$1936 05, shown by the account book to have been put in by the plaintiff, he now claims various other sums, which would swell his capital stock to $4863 05. These items are no where mentioned in the pleadings or the ac
After endeavoring thus to swell by proof, his own investment or capital, the plaintiff has strenuously contested an item of $3410 claimed by the defendant, and included in his capital stock, which he had alleged amounted to $7195 50. This item is made up of certain dry goods which the defendant had brought to Tampa Bay from Philadelphia, and which were the balance of his stock in trade in that city before he went into partnership with the plaintiff. It is contended by the latter, that these goods were never brought into the partnership, but remained until the day of the dissolution the property of the defendant, who, when the articles of settlement and dissolution were drawn up, agreed to sell them to the plaintiff, together with his interest in the concern, ánd that it is for this reason a distinct mention of them is made in that instrument, which mention would have been altogether unnecessary, had they belonged to the partnership. To this it is answered, that the true reason why these goods were specially named in the articles was, that this stock, being in part unsuited to the market and selling at a less profit than the other goods, had been a subject of discussion and dissatisfaction between the partners ; and that the defendant, in making his proposition to dissolve, wished to put an end to this, as well as to all other difficulties, and insisted on their being included in the sale as joint stock, thus putting these goods definitively on the footing of capital invested by him. The arguments offered in support of these adverse constructions, are equally plausible, and the evidence contradictory. We think, however, with the inferior Judge, that it preponderates in favor of the defendant’s position. When these dry goods arrived at Tampa Bay, it is not shown that a separate account was kept of them; but on the contrary, that they were mingled with the other goods of the firm, were sold as occasion offered in the same manner, and the proceeds of the sales entered in the partnership books without any distinction; that the invoice of these goods was placed in the hands of the plaintiff, with the other invoices of goods as they arrived, and by him repeatedly referred
The sum of §5335 25, with which the defendant’s stock account is debited, shows, that at the time of the dissolution, his original investment was reduced to $1860 25, a sum inferior by $75 75, to that put in by the plaintiff. The amount charged to the defendant on the book, is mainly composed of the several sums of money allowed by the court below as having been paid to, or for the defendant, in Philadelphia, by his brother Joshua Burr, with the partnership funds transmitted to him by the firm, with the exception of an item of §2200, with which, we ihink, the defendant is not chargeable. The evidence shows, that this amount only passed through his hands, and was by him applied to thepayment'of a draft of the firm on Joseph Burr, Sen., for $3100, in favor of Hart, Labatt <fc Co., for the purchase of some goods in New Orleans, iu May, 1837. As to the sum of §500, charged by Joshua Burr, as cash paid to take up an accommodation note of Burr & Lynch held by the Bank of the Northern Liberties in Philadelphia, it was, we think, properly allowed as a claim against the defendant under his warranty, as the note itself, when called for by the plaintiff, was not produced, and no proper evidence was given of its payment. If to this sum be added that of $75 75, the excess of the plaintiff’s capital over that of the defendant, at the time of the dissolution, we find that, in the main action, the defendant stands indebted to his partner in the sum of §575 75.
The reconventional demand which we will now consider, consists of two small debts of the firm, one of $10S 50, and one of $55, paid by the defendant since the dissolution ; and of a sum of $5000, which he claims to have paid to his father on the 26th of July, 1838. As to the two small items, there appears to be no dispute. In relation to the other, the evidence shows that, at the time of the dissolution, the account of Joseph Burr, Sen., exhibited a balance against Burr & Lynch of $8708 90. This account, the correctness of which is fully proved, was sent to New Orleans to be sued on. On the 26th of August, 1838, Burr, Sen.,
The only evidence offered to this point is the declaration of one David Mordecai, formerly in the employ of the firm, that while the defendant was at Tampa Bay, in May, 1837, he told him he had made large remittances to his agents in Philadelphia. This witness does not recollect the precise amount stated ; but says, that he knows it exceeded three thousand dollars: he adds that, to the best of his recollection, it might even have exceeded five thousand dollars. The sworn account of Joshua Burr explains this vague testimony, it shows, that on the 23d of May, and on 9th and 23d June, 1837, he received in Philadelphia through Burr, Sen., remittances from the defendant to an amount exceeding $3000. The plaintiff’s defence to this part of the demand in reconvention, involves an imputation of gross fraud and wilful perjury against the defendant and his father and brother, charges too serious to be supported by the vague recol
It is, therefore, ordered, that the judgment of the District Court be so amended, that the defendant, Joseph Burr, do recover of the plaintiff, James Lynch, the sum of $4587 75, instead of $4868 48, with costs below ; those of this court, to be borne by the appellee.