1 Port. 232 | Ala. | 1834
This w as an action of assumpsit, brought by the plaintiff s¿ as merchants and partners, to recover of the defendants the amount of an account for goods, wares and merchandize sold and delivered to the defendants. The defendants pleaded non* assumpsit, payment, and set off. A bill of exceptions was signed during the progress of the cause, which contains the matters here assigned as error. [ It appears, that under the plea of set off, the defendants introduced an account raised with them as tavern keepers, by the plaintiff, Pierce, for meat and drink consumed by him ; proving by a witness who was their bar keeeper, that it was agreed between the said Pierce and the defendants, that the account so raised, was to be liquidated by goods from the store of the plaintiffs.- Another witness proved that the said Pierce, anterior to the raising of the account so set up, had incurred one for board with him, and that in the settlement which he had with said Pierce, the witness’ account in the plaintiffs’ store was discharged by said account for board, without pny objection made to this
I think the court was correct in refusing to give the charge as required by the plaintiffs’ counsel, but that there was error - in the charge which was given in its stead.
In regard to the charge sought, I understand it to contain this proposition, that an account for matters purely individual against one member of a firm, cannot by an agreement with that member, be made a charge upon the firm. Now if does not follow as a necessary consequence, admitting the in dividual nature of an account, that the agreement to pay it in the goods of the firm, would not be binding upon the partnership., If such an agreement were unauthorised, then I admit that such would be the case. But however foreign to the concerns of the partnership, the subject of this account may be, if the defendants could establish that by the consent of Baldwin, it was either agreed to be paid by Pierce, out of the effects of the firm, or that the goods in the acpount sued upon, were delivered by his assent, either express or implied, in virtue of the agreement testified to by the witness, in either 'event, the set off would be admissible. ■ I cannot perceive, to be sure, any sufficient motive to induce Baldwin to assent to, or to authorise an agreement by his copartner, so as to bind the firm, touching the most formidable portion of this accountj at least; it being for drinks of liquor at the tavern : for how- ■ ever a small allowance in that particular might be deemed reasonable, the disproportion in this account, of the drink to the meat, was as inordinate as that of the sack,' in the bill of
With this understanding of the law, I think the court did not err in refusing the charge as asked by the plaintiffs counsel. ‘
The next error assigned, is, the instruction given as above stated — “ that under the evidence, the whole account of the defendants, so far as proved, was a good set off against the plaintiffs’ demand.” I do not distinctly perceive, upon what principle of law, or upon what view of the case, this instruction was given. If it were intended to declare, that the account set up, though it were believed by the jury to be an individual debt, due from Pierce, for which the firm was not
The judgment is reversed, and the cause remanded. • •