Stothert v. Knox

• Decision Date: 31 May 1838
• Parties: JOHN D. STOTHERT v. GEORGE KNOX.
• Court: Missouri Supreme Court

5 Mo. 112

JOHN D. STOTHERT

v.GEORGE KNOX.

Supreme Court of Missouri.

May Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY

HAYDEN, for Plaintiff. The plaintiff has assigned for error the several opinions of the court, and will insist before this court upon the following points: 1. That the court erred in refusing to give the instruction prayed for by the plaintiff. 2. That the court erred in not setting aside the non-suit, and in refusing to grant him a new trial.

The ground upon which the Circuit Court refused to give the instruction to the jury was, that from the evidence in the cause, it appeared that the debt claimed was one which grew out of a partnership transaction, and that, therefore, the remedy was in chancery and not at law; and as the errors alleged depend upon the same principle, I shall consider them together. It is insisted that the action is well conceived, and ought to be maintained. In Gow on ““Partnership,” page 113, it is laid down as the law, that where one partner pays a debt for which he and his partner are liable, he may receive or enforce a contribution from him by the action of assumpsit. See the same book, pages 114, 115, et seq. See also, Mass. Rep. Stephen Bringham v. Evleth, 538; same book, John C. Jones and others v. Nathaniel Harradan. These cases decide that assumpsit for a debt will lie whenever the action of account will lie, 1 Leon, 219; Moore, 458; 12 Mod. 517; and in the last case referred to in Massachusetts, the court says, that it was the opinion of Lord Holt, that whenever action of account could be maintained, indebitatus assumpsit might be also; and the Massachusetts court in that case has expressly decided, that, as the statute of 4 and 5 Anne, giving remedies by action of account to tenants in common and joint tenants against their companions, had been adopted in Massachusetts as law, and as the statute is a remedial law, it ought to receive a liberal construction; that it was enacted to provide a relief which could not be had at common law, and that an equitable construction ought to be given to it, so as to entitle a party to maintain indebitatus assumpsit, wherever the action of account would lie saying that such equitable construction of the statute had been countenanced by long practice. Such the court declares to have been the decisions of the English courts after the passage of the same act. And the court will perceive, by reference to our Digest, 1st chapter, title “““Accounts,” that the Legislature of this State, in February, 1835, passed an act regulating and giving the action of account as fully as did the statute of Anne; and such has been our statute law since the year 1825. Indeed, I cannot perceive why the action of indebitatus assumpsit is not, upon principle, as well adapted to the case as the action of account would be. The defendant can make the same defense in the one action as in the other; and the proof in both cases on the part of the plaintiff is the same; and I defy any gentleman to give any reason why there should be a different remedy adopted by a party paying a joint debt (contracted by co-partners), after a dissolution of the partnersnip, out of the individual estate of the partner (as in this case), and a payment of a debt of two or more by one of the co-obligors, where such debt did not grow out of a partnership transaction. The principle of law, which requires parties, being in eaquali jure, to bear equally the burden, is the same in both cases. It cannot matter, upon principles of law, in what manner the joint legal liability arose, so that it existed, and was discharged by the plaintiff. In this case, it is not necessary that the court should inquire into the accounts between the partners during the existence of the partnership; it has ceased for years, upon a dissolution made by them; it was insolvent, and the effects of the concern had been exhausted out of which the creditors of the partnership were entitled to the payment of their debts first, had they been sufficient for the purpose, in exclusion of the creditors of the partners individually. The record shows no existing claims by the partners against each other which arose during the partnership, but it shows an application of the individual estate of the partner, Stothert, coerced by the process of the law, in discharge of a debt for which the defendant is equally liable. Now it is clear, that partners never expect, nor have they a right to require, any part of the individual estate of each other to be appropriated to the payment of the debts of the partnership. They have no claim to the application of anything belonging to their fellows, as between themselves, to the liquidation of the partnership debts. The decisions read to the court by defendant give no good reason why the present action cannot be maintained. Where payments are made during the existence of the partnership by the partners, respectively, a presumption may rationally arise that the payments so made are made out of the partnership effects, each party having like control over the effects, and, so far, are all bound alike.

KIRTLY, for Defendant. The principal question in this case grows out of the instruction asked by defendant and refused by the court; that is, can one partner of the firm, associated as merchants, paying a part of a co-partnership debt out of his individual effects, recover in an action of assumpsit, by separate suits, off of each of the members of the firm, by way of contribution, their just part of such payment? In other words, under the facts as preserved in the record, can this action be sustained? That it is misconceived and will not lie, I consider settled by a current and weight of authority, both English and American, perfectly irresistible. In Foster v. Allerson, 2 T. R. 480, it is said by Buller, and assented to by the court, where there has been a dissolution of the partnership, and an account settled, there would be a sufficient consideration for a promise, and assumpsit would lie. In Moravia v. Levy, 2 T. R. 483, there was a balance struck and an express promise to pay; and it was objected that, there being a covenant to account, assumpsit would not lie; and Buller deciding, said there was an express promise to pay the balance struck; otherwise the objection would have been good. In 3 Star. Ev. 1082, it is laid down as a perfectly settled principle, that one partner cannot sue another at law whilst the partnership accounts remain unliquidated, and the accounts must be settled and the balance struck. 2 Star. Ev. 124. So long as any partnership concerns remain unadjusted, such action cannot be...