Rogers v. Rogers

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Rogers v. Rogers, 5 Ired.Eq. 31, 40 N.C. 31 (N.C. 1847)
• Decision Date: 31 December 1847
• Parties: HUGH ROGERS v. JOHN C. ROGERS et al.

5 Ired.Eq. 31

40 N.C. 31

HUGH ROGERS

v.JOHN C. ROGERS et al.

Supreme Court of North Carolina.

December Term, 1847.

Where A. is a partner in two distinct firms, neither firm can sue the other for an amount alleged to be due.

If A. be insolvent, the proper course is for the firm claiming to be the creditor firm, to charge him on its books for the amount believed to be due.

If A. be insolvent, then the accounts of the creditor firm should be adjusted, and a bill may be brought by the remaining members of that firm against the debtor firm, to recover the amount due from the latter after deducting what may be due to A. if any thing, upon the adjustment of the accounts of the creditor firm.

Cause removed from the Court of Equity of Wake County, at the Fall Term, 1847, by consent of parties.

The bill is filed by Hugh Rogers, George W. Lowe, and John C. Rogers, against the same John C. Rogers, and Walter L. Otey. It states that Hugh Rogers, George W. Lowe, and John C. Rogers, were co partners under the name of John C. Rogers and company; and that John C. Rogers and Walter L. Otey were co-partners in a house of entertainment in Raleigh, called the Eagle Hotel, under the name of Rogers and Otey: and that the firm of John C. Rogers and company sold to the firm of Rogers and Otey large quantities of wood for the use of the hotel, and, for the accommodation of Rogers and Otey, accepted their bills, and were compelled to pay them, and likewise lent money to that firm: and that upon all their transactions a balance is due from the firm of Rogers and Otey, to that of John C. Rogers and company, amounting, as the plaintiffs believe, to the sum of $2,000, though they cannot ascertain it precisely: and because the plaintiffs cannot, by reason that John C. Rogers is a member of each firm, have an action at law, the bill prays that the defendants, John C. Rogers and Walter L. Otey, “may answer what amount is due from the said firm of Rogers and Otey, to your orators, and that they may be decreed to pay to your orators what may be justly due,” and for general relief.

John C. Rogers did not answer the bill. The other defendant, Otey, put in an answer, in which he states several matters of defence, tending to shew, that John C. Rogers had used the effects of Rogers and Otey to a large amount for the use of himself and the other plaintiffs, and that he and they were heavily in debt to this defendant. After replication and commissions, the cause was set for hearing, as between Otey and the plaintiffs, and was transferred to this Court.

Miller and G. W. Haywood, for the plaintiffs .

W. H. Haywood, for the defendant .

RUFFIN, C. J.

It is unnecessary to consider the various matters stated in Otey's answer, that might affect the merits of the controversy, as between him and the other parties, as it is impossible there can be any decree for the plaintiffs on this bill. It seems to have been drawn upon some vague sort of notion, that the firms are in the nature of...