4 Barb. 92 | N.Y. Sup. Ct. | 1848
There is no valid objection to the defence set up, on the mere ground that it was not made in the suit at law. It is admitted by the complainants that at the time when the cognovit was given, upon which the judgment at law was entered up, the defendants were ignorant of the compromise which had been made with Ward, and that the complainants did not inform them of it, although aware of their ignorance.
With the views which I have taken of this case I do not think it necessary to examine the preliminary question whether Mead was authorized by the complainant to execute the release, which was given to Ward. For the purposes of this suit I shall assume that he had such authority.
The release, after reciting that Ward had compromised his individual liability to the complainants on account of the copartnership debt of the firm of Cass, Ward & Conover, discharges him from all such liability; and, in terms, states that such compromise was made in pursuance of the “ act for the relief of partners and joint debtors,” passed April 18,1838, and of the amended act of May 14, 1845. (Laws of 1838, p. 244.)
There are two questions to be considered. 1. Whether the
The statute authorizes a separate compromise by an individual member with a creditor of the firm “ whenever any copartnership firm shall be dissolved, by mutual consent or otherwise.” (Laws of 1838, p. 243, § 1.) What constitutes a dissolution, is not defined, except in the case of mutual consent. It was contended on the part of the defendants, that the dissolution contemplated by the statute is something more than a mere termination of the partnership relations as to future transactions, and that the statute contemplates a severance of the joint interests of the partners in the partnership effects. This is clearly an erroneous construction : for the act, by its terms, authorizes a separate compromise in case of a dissolution by mutual consent, without requiring any severance. All that the statute requires is a dissolution as between the copartners themselves. That is, if by any act of the copartners the legal authority of the different members of the copartnership to bind the firm has ceased, there is a dissolution within the meaning of the statute.
Applying this rule to the admitted facts in the case, I think that there can be no doubt that the firm of Cass, Ward & Con-over was dissolved at the time when the compromise was made with Ward. Before that time Ward had written to his copartners that he intended to withdraw from the firm; the other partners had executed an assignment of the partnership property; and Ward had published a formal notice of the dissolution of the copartnership.
But it was contended that the complainants were not entitled to the protection of the statute, and that the release to Ward should enure to the benefit of the whole firm, because the consideration given by Ward upon the compromise was taken out of the copartnership funds which he had in his hands, and that the attorney in fact of the complainants, with whom the compromise was made, had reason to believe that such was the fact.
The complainants must have the decree prayed for in the bill; the defendants to be credited to the amount paid by Ward in his compromise with the complainants.
