4 Port. 497 | Ala. | 1837
— The general rule that actions of contract are not maintainable between partners, on the partnership account, is admitted by the counsel of each party, and recognised by the Court; and the question is, whether this case be within any of the acknowledged exceptions to the rule?
For the plaintiff in error, it was contended, that the exceptions do not include any case, -where the plaintiff in the action, cannot prove that a final settlement has been made, by which it was ascertained that he is entitled to what he demands; because without such proof, it cannot appear, which of the parties is indebted to the other upon the partnership account.
Of the authorities which were cited to support this position, the only one that does sustain it, is the case 0f Robson vs Curds.
In the case of Coffey vs Brian,
In Colly er on Part. (149, 150,) it is admitted to be difficult to reconcile the two cases; and the author of the work, indicates his preference for the decision in the case of Coffey vs Brian. During the partnership, one partner can maintain an action against the other for money advanced by the former to the latter, to supply his share of the stock of the partnership, or upon a note or bill, made or accepted, for value received on the partnership account, by one in favor of the other — Coily er on Part. 147.
In the case of Neale vs Turton, et al.
In the case Van Ness vs Forrest,
The note in this case is according to our statute law, evidence of the debt, which Malone demanded.
No testimony was offered to show that there was no consideration for the note. It did not appear from the proof that-Malone had collected any sum from the books and accounts of the partnership, when he 'paid the debt due from the firm, for one half of which, the note in this case was given, or that he had since collected any thing. The fair inference from the execution of the note, if it were necessary to make an inference, is, that the debt of the firm was paid out of the separate fund of Malone.
The judgment is affirmed.
LYON VS MALONE.
The principle of the decision in the foregoing case, is applicable to this case. The judgment is therefore affirmed.
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