48 Va. 380 | Va. | 1851
This was an action of assumpsit, brought in the Circuit court of Buckingham county by Peyton, Deane Edwards against Peter B. Stratton and three others, surviving partners of the firm of Lancaster, Stratton *381 Co. On the trial after a number of exceptions had been taken, in which all the evidence was stated, there was a verdict for the defendants. The plaintiffs thereupon asked for a new trial on the ground that the verdict was contrary to the evidence; but the Court overruled the motion, and the plaintiffs excepted. In this bill of exceptions the Court certified all the evidence stated in the previous bills of exceptions as to the facts proved.
It appears from the evidence that Lancaster, Stratton Co. were partners and millers doing business at Curdsville in the county of Buckingham; and that Peter B. Stratton was the managing partner. The business was commenced in the spring or summer of 1838, and Nathaniel Lancaster one of the partners died on the 19th of March 1841; but the business was continued until the 30th of June of that year.
In the year 1838 Peter B. Stratton commenced business as a merchant at Curdsville, in his own name; and in September 1839 he formed a partnership with Richard A. Booker, under the name of Stratton Booker, which was continued until September 1841.
Peter B. Stratton being the acting partner in both concerns, and the books of Lancaster, Stratton Co. being in fact kept in his storehouse, he purchased the grain manufactured at the mill of Lancaster, Stratton Co. paying for it sometimes by goods out of his store or the store of Stratton Booker, and at others by his own money or his own note, or by the proceeds of the flour manufactured. This flour was shipped to the plaintiffs Peyton, Deane Edwards, commission merchants in Richmond; and Peter B. Stratton drew upon them for the proceeds of it, either in his own name or the name of Lancaster, Stratton Co. as suited his own convenience.
The books of Lancaster, Stratton Co. shewed that when Peter B. Stratton purchased grain for them and *382 paid for it out of his store or the store of Stratton Booker, Lancaster, Stratton Co. were charged with the amount paid for them; and when Stratton drew on Peyton, Deane Edwards on his own account, Lancaster, Stratton Co. were credited with the amount so drawn. In the account rendered to this firm by the plaintiffs, there is, under the date of February 4th, 1840, a charge by the plaintiffs to them, of 4222 dollars 43 cents, being a transfer of that sum from the account of Peter B. Stratton to the account of Lancaster, Stratton Co. To this charge the other members of the partnership made no objection; and at this time the books of the firm shewed that Lancaster, Stratton Co. were debtors to Peter B. Stratton to this amount. Again, there is in the account of the plaintiffs with Lancaster, Stratton Co. under date of July 15th, 1841, a charge of 10,646 dollars 42 cents in like manner transferred from the account of Peter B. Stratton to the account of Lancaster, Stratton Co. This sum it was ascertained afterwards, was more than Stratton or Stratton Booker were in advance to Lancaster, Stratton Co., and the excess was returned: yet leaving Lancaster, Stratton Co. debtors to Peyton, Deane Edwards as appeared by the books of the former in the sum of 8252 dollars 26 cents, on the 1st of July 1841. Of this sum there does not seem to have been any doubt but that it was due to Peyton, Deane Edwards from one or the other of the parties; and the question in the cause was whether Peter B. Stratton was authorized, after the dissolution of the partnership of Lancaster, Stratton Co. by the death of Nathaniel Lancaster, in March 1841, to substitute them as the debtors of Peyton, Deane Edwards in the stead of Stratton Booker, whilst he credited them with Stratton Booker for the same amount.
The Court having refused a new trial, and rendered a judgment upon the verdict for the defendants, the *383 plaintiffs applied to this Court for a supersedeas, which was awarded. The Court is of opinion, that as it appears from the account taken from the books of the firm of Lancaster, Stratton Co., that the firm, at the expiration of the partnership, was indebted to the plaintiffs in error in an amount exceeding the sum claimed in this suit, such account furnished by their own books would be prima facie evidence of the claim of the plaintiffs in error, and throws upon the defendants in error the burthen of shewing that the claim was not really due.
The Court, without deciding upon the sufficiency of the certificate of the facts proved upon the trial, as set forth in the bill of exceptions to the decision of the Court overruling the motion for a new trial, but looking thereto for the purpose of ascertaining to what extent the primafacie evidence furnished by said account is counteracted by the other evidence in the cause, and regarding the same in the most favourable aspect for the defendants in error, it clearly appears from evidence uncontradicted by any thing appearing in the cause, that the firm of Lancaster, Stratton Co. were indebted to Stratton or Stratton Booker in an amount exceeding that which was transferred from the account of the latter, and not settled by P. B. Stratton, to the account of the plaintiffs in error. And the effect of such transfer was merely to substitute the plaintiffs in error as the creditors of the defendants in error in the place of Stratton or Stratton Booker, without enlarging, or in any other mode affecting, their liability for the debt due by them: they having obtained credit for the amount so transferred with Stratton or Stratton *384 Booker. The Court is of opinion, that under the authority of the case of Brown v. Higginbotham, 5 Leigh 533, and the circumstances of this case, the surviving partner, P. B. Stratton, was authorized to make such transfer. It appears he was the acting member of the firm charged with the settlement of the accounts; that the debt due from the defendants in error to the said Stratton or Stratton Booker, grew out of purchases of wheat made for their benefit, by Stratton and Stratton Booker, and paid for by the latter with merchandize purchased by them of or through the plaintiffs in error. It further appears that the plaintiffs in error supposed that P. B. Stratton, the acting partner of the firm of Lancaster, Stratton Co., had authority to make such transfers, and that on the 4th February 1840, which was long before the dissolution of the firm by the death of Lancaster, a transfer for the amount of 4222 dollars 43 cents was actually made and entered on the books of the defendants in error, and never objected to; so that in reality the effect of the transfer merely rendered the defendants in error responsible for a debt contracted for goods and merchandize of which they received the benefit; and the propriety of the transfer was recognized by the firm in one instance before its dissolution by the death of Lancaster; in these particulars making this a stronger case for the exercise of the authority to make such transfer by the surviving partner in settling up the affairs of the firm, than was furnished by the facts in the case ofBrown v. Higginbotham.
It therefore is considered by the Court, that the judgment of the Court overruling a motion for a new trial is erroneous.
Reversed with costs, verdict and judgment set aside, and cause remanded for a new trial. *385