2 Ga. 18 | Ga. | 1847
delivering die opinion.
The complainant in this case filed her hill against the plaintiff in error in die Court below, calling upon him to account for the proceeds of a lot of cotton purchased by the complainant’s intestate, James Solomon, in his lifetime, and the defendant as co-partners. From the record as transmitted to this Court, it appears that the defendant and his brother James, advanced about the sum of thirty-five hundred dollars each, to purchase cotton on speculation, to share equally of the profits and loss of the adventure. In pursuance of the agreement between them, about three hundred and fifty bales were purchased and forwarded to Wimberly & Jones, their factors in Savannah, which were by them shipped to Isaac, Low & Co. at Liverpool.
It also appears that Wimberly & Jones drew against the cotton so shipped by them to Liveipool, the sum of seven or eight thous- and dollars.
After the cotton had been shipped to Liverpool, Henry Solomon, the defendant, proposed to draw on Wimberly & Jones on account of the cotton, the sum of thirty-five hundred dollars, for his individual use; to which James Solomon assented, but declined drawing any money for himself, saying he had no use for the money, and wanted the benefit of the sterling exchange, &c. The cotton was sold in Liveipool, and the proceeds, over and above the sum drawn by Wimberly & Jones, was two thousand and thirty-six dollars, including the sterling exchange, which was equally divided between the partners.
It also appears fi'om the record, that suit was instituted by the partners against Wimberly & Jones, for the money drawn by them against the cotton remaining in their hands, and a judgment rendered therefor, for the sum of four thousand four hundred and seven dollars and nine cents, which has never been collected, Wimberly & Jones having become entirely insolvent. The complainant, as the adm’x of James Solomon, now claims the one half of tho thirty-five hundred dollars drawn by Henry Solomon against the cotton, in May 1840, for his individual benefit, and that he account with her for the proceeds of the sale of the cotton, &c. which has come into his hands as one of the partners in the joint adventure.
The defendant refuses to account with the complainant, on the
“ The contract of co-partnership imports entire good faith between or among the partners. Partners are bound to use the partnership- property for the benefit of the partnership interest, therefore, if one partner draws upon the partnership funds and applies the proceeds to his own individual use, he is liable to account to his co-partner for a moiety, with interest from the time he received the fund so drawn. The interest each partner has in the partnership property, is his share in the surplus, after the partnership accounts are settled, and all just claims satisfied.”
“ The only ways a co-partnership for a single- adventure, enterprise, or business, can be dissolved are—first, by the extinction or destruction of the subject of co-partnership; or secondly, by a total separation or severance of it, before the completion of the business- or enterprise; or thirdly,by a completion or ending of the adventure, business or enterprise. The Court does not recognise any such thing in law, as a dissolution fro tanto of a co-partnership for single adventure, enterprise or business—there must be a total severance. If James Solomon, when he gave Henry Solomon leave to draw the thirty-five hundred dollars against the cotton, for his-(Henry Solomon’s) uso, agreed also, that ho would take the risk of the failure of tho Savannah factors and Liverpool consignees, and that the futuro loss should fall upon him, then the jury ought to-
Defendant’s counsel asked the Court to charge that it was competent for James and Henry Solomon, during any period of the adventure, to have severed by agreement any part of their interest in the subject matter of the enterprise; therefore, if the jury ■should be of the opinion from the evidence, that James Solomon agreed that Henry Solomon should withdraw thirty-five hundred •dollars of his part of the proceeds of the cotton, and that James Solomon preferred to leave the whole of his share with the view to realize to himself the profit of the sterling exchange, they ought to find for the defendant, which the said Court refused to charge ; but charged the jury “ that it was competent for Henry and James Solomon at any time before the termination of the adventure, to agree to a total separation of their interests, or that Henry Solomon might draw for thirty-five hundred dollars and appropriate the same to his own use, and if James Solomon assented to it, and that James would run-the risk of future loss, then the jury would find for the defendant.”
Wb-havé carefully examined the instructions given to the jury by the Court in this case, in reference to the law of partnership, and give •our sanction to most of the principles advanced by the Court below, as applicable to the case then before it. If, however, the Court intended to be understood as saying, that co-partners, as between themselves, could not alter, modify, or dissolve a co-partnership for a single adventure, enterprise, or 'business, by contract or agreement, then we are of the opinion the Court below erred in its judgment as to the law. Partnerships for a single adventure, enterprise, or business, are formed by agreement between the partners, and where no certain limit is fixed for their duration, may be dissolved at the pleasure of either of die partners. Story on Part. 286, sec. 269; 3 Kent Comm. 53.
The co-partnership existing by the contract of the parties,
The Court below charged the jury that “the contract of
Does the record, in this case, shew that there was any fraudu-
The declarations of deceased persons are often-times easily proved, but extremely difficult to explain or contradict, for the reason, the voice of him who is alleged to have made them is hushed in the silence of the grave. Where one, through a mistake of the law, acknowledges himself under an obligation which the law will not impose upon him, he shall not be bound thereby; as, where the
The thirty-five hundred dollars having been drawn by the defendant with the exp-ess assent of his co-partner, we are of the opinion, that the Court below erred in its instructions to the jury that the complainant was entitled to interest from the time he drew die money in May, 1840; it being the opinion of this Court that he was not entitled to interest thereon until a demand made, and a refusal by defendant to account to his co-partner for the one-half of die money so drawn; and there must be a new trial on that ground ; unless the complainant shall, on or before the first day of the next succeeding term of the Court below, enter a remittitur on the record thereof for the interest found by the jury from May, 1840 up to the 12th day of August, 1842, the time the demand was made by the institution of the complainant’s suit. All the other assignments of error appearing on the record, are overruled.