28 Vt. 498 | Vt. | 1856
The opinion of the court was delivered by
It appears, from the report of the auditor, that Brown became a partner in the firm of Morgan, McCaine & Co., in March, 1852; and at that time there was a considerable balance on account due from the defendant. Brown continued as a partner until February, 1853, when he sold back his interest to the other members of the firm. On the account which accrued while Brown was one of the firm, there was a small balance due from the plaintiffs to the defendant, provided the payments made during that period are applied on the charges which were then made. The present plaintiffs, it is obvious, are not entitled to the judgment which they have recovered, unlesss the payments made during that time, are first to be applied in satisfaction of the balance which was due from the defendant in March, 1852. In that event, the balance, as reported by the auditor, is due from the defendant to these plaintiffs. The change in the members of the firm, by the introduction of Brown as a partner, produced no alteration in their mode of doing business ; the business was continued in the name of Morgan, McCaine & Co. while this account was accruing. During that time Brown was a resident of Boston, in Massachusetts, and took no open or active part in the business of the firm. It was certainly competent for the plaintiffs to have kept the balance due them in March, 1852, distinct from the account which subsequently accrued, and if, in that manner, the continuity of the account had been broken, a general payment should be applied in satisfaction of the subsequent account; such would be the presumed intention of the parties from that circumstance.
The judgment of the county court is affirmed.