Pierson v. Hooker, 3 Johns. 68

Pierson v. Hooker

3 Johns. 68 | N.Y. Sup. Ct. | 1808

Kent, Ch. J.

delivered the opinion of the court. The release was executed by one of the plaintiffs in the partnership name. It is therefore impossible to doubt, but that it was intended to affect and cancel partnership demands. The plaintiffs, however, offered parol testimony to show that the present demand was not one of those which were intended to be included. But the instrument is general and comprehensive, and expressly reaches to every debt and demand of every kind. To show by parol proof that it was not so intended, is to contradict or explain away the instrument, which is contrary to the established rule of law. It is again said, that one partner cannot bind another by deed. This, as a general position, is correct; but it does not apply to the case before us. Here was no attempt to charge the partnership with a debt by means of a specialty, but it is the ordinary release of a partnership debtor. It is a general principle of law, that where two have a joint personal interest, the release of one bars the other ; (Ruddock’s case, 6 Co. 25.) and I cannot perceive, that the case of copartners in trade forms an exception to the general rule. Each partner is competent to sell the effects, or to compound, or discharge the partnership demands. He is to be considered as an authorised agent of the firm, for all such purposes. (Watson, 137. 141.) Each has an entire controul over the personal estate. So, in like manner, one co-executor or administrator, cannot bind his companion to an obligation, but he may commit a separate devastavit, and release a debt. This court admitted the general principle, in the case of Clement v. Brush, (July term, 1802,) in which it was held, that if one partner gave his separate bond for a copartnership, simple contract debt, the simple contract was extinguished by the specialty.

*71As the matter set up by way of defence, was admissible and sufficient, it becomes unnecessary to examine an objection raised to the testimony in support of the plaintiff’s right of action, that the plaintiffs did not prove a previous demand on the drawees of the bill. If this was now to be decided, it would perhaps be P sufficient to refer to the case of Lundie v. Robertson, (7 East, 231.) in which the very point arose, and the court of K. B. held, that where the indorsor had made a subsequent promise to pay, a previous demand on the drawer, and due notice to the indorsor were to be presumed, and need not be proved. This decision was agreeable to the ancient opinions of Lord Raymond, and Ch. J. Lee, at' nisi prius. (See MS. report of Burnet, in a note to the above case, and Sir. 1246.) On this last point, however, we give no definitive opinion: but on the ground of the competency and conclusiveness of the defence, the motion for a new trial is denied.

Rule refused.