Van Amringe v. Ellmaker

Rogers, J. We seef|^thin|te'||j the memorandum of the 30th ‘of September, 1840, whip^tfedic^^ji partnership, but.conceding that it does, and that it existed from its date until July, _1830, tli? partnership was dissolved on the 1st of July, 1832, for. on that day a settlement took place, which resulted in the defendant, Van Amringe, giving three notes to the plaintiff, one of which is now the matter in controversy. That one item only is left over for future settlement, will not take the case out of the well-settled principle, that on a final settlement and a balance struck, one partner may maintain an action of assumpsit against his co-partner.. The accounts were finally settled, except a claim for. commissions, which it seems was reserved for future adjustment. - It cannot be doubted that it.is for the benefit of all parties to partnership transactions, to encourage amicable arrangements,rand not to permit, except for special causes, the whole question to be thrown open, as it would be if, notwithstanding a settlement, the parties were compelled to institute an action of account render. And this more especially in Pennsylvania, where the latter is the only remedy in many parts of the state. And even conceding the principle asserted in Killam v. Preston, 4 Watts & Serg. 14, that assumpsit will not lie by one .partner to recover from the other abalance due upon the settlements of the partnership accounts, without proof of an- express promise to pay, yet the execution of a note foj’the balance due after settlement is such an express promise as will sustain the suit. . Although the point is not .ruled, yet Mr. Justice Kennedy, who delivered the opinion of the court in the case cited, inclines to the opinion on the authority of Foster v. Allanson, 2 Term Rep. 479, and Fromontn. Coupland, 2 Bing. 190, (9 E. C. L. R. 367,) that an express promise is necessary. But in those cases, notwithstanding it was held that where there is an express promise, assumpsit may be sustained, yet it is not ruled that less than an express promise may not suffice. So in Moravia v. Levy, cited 2 Term Rep, 483, there was an express promise. The point, therefore, did not arise, although there is no doubt, Buller, J., intimates, that otherwise the objection to the action would be good. In Fromant v. Coupland, the point is not ruled, but Park, J., expresses the opinion, that there must be an express promise. But I must say, that I prefer the opinion of Gibbs, C. J., in Rackstraw v. Imber, 1 Holt, 368, which held that a promise was not necessary. I ,am disposed to believe, that in Pennsylvania at least, where we have [284] no Court of Chancery, it will be held, when the fact directly arises, that there is an implication of a promise on a final settlement and balance struck. From this it follows, that the court was right in excluding the testimony offered in\the first and second bills, for if true, it could not, on the principle already ruled, defeat the action. I am willing to concede, however, that if the defendant had coupled with it an offer to show mistake in the settlement, a different question would be presented. But it is plain, that the object was to defeat the action of assumpsit, and turn the plaintiff round to an action of account render. It is a question of remedy and not of right, and every purpose of justice may be as well attained in an equitable action of assumpsit. The evidence was properly excluded, because, if admitted, it could produce no practical result, and was, therefore, immaterial to the issue. The court was right in rejecting the commission, for the simple reason that it was issued contrary to the rule of the District Court, which requires fifteen days’notice to file cross-interrogatories; whereas, fourteen days only had elapsed, before the commission was taken out and sent to New York. About this there can be no difficulty, for if we can dispense with one day, we can with two or three, and so on, and in the end there will be no rule whatever. That it was taken out after the office was closed can make no difference, for the opposite party.had until the next day to file his cross-interrogatories. This is a right of which he cannot be deprived. We seldom interfere with the construction of rules of court, and only when it is necessary to produce uniformity of practice, or when a rule is common to more than one district. Each court is the best judge of the construction of'its-own rules. The fourth error has been properly abandoned, and as we perceivé no error in-the record, we direct the judgment to be affirmed. Judgment affirmed.