5 Mo. 112 | Mo. | 1838
Opinion of the court by
This was an action of assumpsit, with the common counts, brought by Stothert against Knox in the Boone circuit court. - Knox pleaded non assumpsit and set-ofij and a special plea. Issue to the first plea, and replications and issues to the others.
In 1826, Stothert and Knox, with James S. Lane, Luman Parker, and William P. Tilton, associated themselves as partners in buying and selling merchandize. In 1827, and during said partnership, they purchased goods of Moses Thomas, of Philadelphia, to the amount of $¡40,-000, for which they became indebted. The partnership proved a losing business, and was dissolved'before any part of said debt was discharged. The partners made no settlement of their accounts, and struck no balance as to the tmsiness of the firm. They were afterwards sued by Thomas for the aforesaid debt of $>40,000, and the individual property of said Stothert being attached, he paid and satisfied, out of his own separate and individual estate, $10,000 to said Thomás, on account of said partnership debt.
On this state of facts, the plaintiff moved the court to give the jury the following instruction: “That if the plaintiff paid out of his individual property ten thousand dollars, in part satisfaction of a debt due from the company, of which both plaintiff and defendant were members, to Moses Thomas, that then the plaintiff is entitled to recover against the defendant such portion of the money as the defendant is bound to contribute. ” This instruction the court refused, and the plaintiff excepted. The plaintiff then took a nonsuit, and afterwards moved to set it aside, and asked the court to grant him a new
After an account has been liquidated between two partners, and a balance struck, an action of assumpsit to recover the balance; but here no settlement has been made between the partners, and no balance struck, and the rule is otherwise. Une partner cannot maintain assumpsit against another while the partners^jp concerns remain unadjusted. The weight of English and American authorities go in support of this rule, and so the law should be settled here—14 J. R. 318; 17 J. R. 80; 12 J. R. 401; 12 Mass. 34; 7 Pick. R. 59. The circuit court committed no error in refusing the instruction asked by the plaintiff, and in overruling the motion to set aside the nonsuit and grant a new trial. The judgment of the circuit court should therefore be affirmed; and the other judges concurring, it is affirmed.