1 Lans. 488 | N.Y. Sup. Ct. | 1869
Present — E. D. Smith, Dwight and Johnson, JJ.
By the Court
The justice at the circuit was clearly right in holding that there was no evidence tending to sustain the defence of non-joinder of proper parties set up in the first answer. The note was plain, and, upon its face, was payable to the plaintiff only, or to his order. It is not of the least consequence to whom the money, before the loan, belonged. Even if it belonged to Mynderse & Co., beyond all dispute, it does not at all affect the question of the exclusive ownership of the note by the plaintiff. It was plainly matter of agreement amongst all the parties that the money loaned should be paid exclusively to the plaintiff, or to his order. Such was the instrument which the defendants signed and delivered, and it cannot be altered or varied by paroi. Conceding that the loan was by the partnership, of which the plaintiff was a member, and was from partnership funds, it was clearly taken out of the partnership transactions, when it was mutually agreed, either expressly or impliedly, that it should be repaid to an individual partner, instead of the firm. It is the same then as though the agreement had been to pay it to a third person, on account of the firm making the loan, and such third person had accepted the obligation. It is then indisputably his chose in action, whatever fund it may have sprung from originally. Evidence that before the money was loaned to the defendants, and became their money, it was the money of two persons jointly, does not prove, or tend in the least degree to prove, that the chose in action they gave in exchange or in consideration of the loan, does not belong to the individual payee to whom alone they promised to pay, and who holds and claims the obligation as his own exclusively. The
The next question is, whether the evidence offered should have been admitted to prove the counter-claim against the plaintiff and Vanclief, set up in the second and third answers. This was a demand which the defendants had, or claimed to have, against the plaintiff and Yanclief jointly, as partners, and joint contractors with them. It was for damages arising from an alleged breach of the contract by these two partners. This claim, as is apparent, was not against the plaintiff, but against the firm, of which he was an individual member. Properly there could be no several judgment between the parties to this action, on account of that claim; no judgment which would be conclusive, and operate as a bar, in respect to all the parties interested in the claim. It was not upon its face, or in law, a claim against the plaintiff individually. This is the test. It must be a claim or demand “ existing in favor of a defendant, and against a plaintiff, between whom, a several judgment might be had in the action.” (Code, § 150.) It was not a demand against the plaintiff alone, but against the plaintiff, and another, jointly bound with him, as a partner. It was a partnership debt, if a demand existed. Partners are not joint and several debtors, but joint debtors only. It was not, therefore, such a counter-claim, as the Code authorizes, and allows to be set up by way of answer between these parties. Nothing is better settled, than the general rule, that a creditor of a partnership is not entitled, as-matter of law, to bring a separate action, and have a separate judgment, against one of the several partners, where they are all living. The defendant’s counsel relies upon the decision in the case of Schubart v. Harteau (34 Barb., 447), as authority for the allowance of the counter-claim in question. What is said by Ingbaham, J., in delivering the opinion in that case, would seem to cover the position of the defendant’s counsel.
A new trial must therefore be denied, and judgment ordered for the plaintiff on the Verdict.
New trial denied.