Anderson v. Levan

The opinion of the Court was delivered by Huston, J. Abraham Levan brought this action against both defendants. A rule for arbitration was entered — arbitrators chosen, and a report made against both for $165.64. Frahn, who is stated, to be insolvent, acquiesced. Anderson appealed, and, after objections, a jury were sworn, and a verdict against him for about the same sum with interest. - The first error assigned amounts to this : the report of arbitrators became a judgment as to Frahn, and there cannot be two judgments on a claim against two jointly. Admitting this to be true at common law, it in this state is changed by Act of Assembly. Every suit may be arbitrated under our Act of Assembly by plaintiff or by defendant; when two are sued, and the cause is arbitrated, under this law, either party may appeal. The one defendant appeals—perhaps the only solvent one — if there can be no verdict and judgment [338] against him, and the judgment is reversed, the plaintiff has lost his debt. That there cannot be two judgments against two defendants obtained at different times in the same action, is a rule, but a purely technical one; and the courts or the legislature ought to provide for two executions going on in the same suit, in such a case as this; as two executions for the same debt can go on at the same time for the same debt against joint and several obligors, or drawers and endorsers of the same note. On the 3d of December 1836, Frahn and Anderson entered into articles of agreement “ to buy wheat; Mr. Frahn will go to Philadelphia, and purchase wheat with money furnished by Anderson. Frahn will have it brought from Philadelphia, and grind it into flour, and sell it to the best advantage; the expenses are to be deducted from the proceeds, and the balance equally divided for profit or loss. It is understood that Mr. Frahn is not to charge for grinding, over what he may have to pay hire.” There was then evidence that, during the whole of 1837, Anderson was at the mill every week examining the books; that a good deal of grain, during the spring and summer of 1837, was purchased from boats coming from the west, as well as in Philadelphia ; that not much grain was got in the neighbourhood. It was then proved that Frahn openly and repeatedly said Anderson and he were in partnership; that Anderson showed bills of wheat bought in Philadelphia for Frahn and Anderson; that they in 1837 bought and sold other grain beside wheat; that Frahn refused to make contracts for flour until he saw Anderson; that when a note was given for the price of flour, Anderson endorsed it, and said he was entitled to the money, and drew the money. All this evidence was objected to, particularly the articles of agreement and Frahn’s declarations, but it was received. A partnership may be proved in various ways, by writing, or by the acts of the parties; a partnership, confined by the terms of the agreement to a specific subject of trade, may, in actual practice, with full knowledge of both parties, be extended to other matters. It was allowable to prove that, with Anderson's knowledge, wheat was bought from western boats. The proof was, that all the grain bought and sold, was entered in books, and that Anderson every five days inspected them. Early in the cause, and all through it, there was a dispute whether Anderson was or was not a dormant partner. Frahn’s declarations, on many occasions, were evidence on this point. In May 1837, there was given to Levan the following paper: “ May 12th, 1837. “Due Abraham Levan, for wheat to the amount of four hundred and forty-one dollars, 87-J- cents. “Joseph Frahn.” Defendant gave in evidence, a note under seal produced by plaintiff, on notice: [339] “ I promise to pay unto Abraham Levan, or order, the sum of 441 dollars, 87] cents, on demand, with interest till paid, for value received. Witness my hand this 4th July 1837. “ Joseph Feaiin. [ seal. ]” On this were endorsed,' “ November 17th, 1837, received on within, $200. “ January 29th, 1838, received on within, $100.” Defendant then gave in evidence articles of agreement, January 1st, 1838, between Anderson and Frahn, to carry on the milling business five years, under the name of Frahn & Anderson. Also, a written agreement, 14th of May 1838, dissolving this partnership by mutual consent. After this testimony was heard, and the argument of counsel concluded, the plaintiff had leave to amend his declaration; this is expressly authorized by our Act of Assembly, and has been so often decided by this court, that it ought no longer to be set before us as an error. The case of Sheehy v. Mandeville (6 Cranch 263) was cited, and was relied on by the court; and, for myself, I could wish that case had not been overruled. There is something so unfair in a man receiving the profits of a concern for years, and if misfortune happens, concealing his interest, and leaving third persons to bear the loss, that I think its justice might have supported it; but it has been overruled in New York, and in this state (9 Serg. & Rawle 142,) in a court of law, and in 4 Johns. Chan, cited in the last case, and which I have examined, in Chancery, and by Judge Washington, one of the judges who decided it, in Peters’s C. C. Rep. 301; so that it must be considered settled, that if the known partner is sued, and judgment and execution against him, without satisfaction, a dormant partner, afterwards discovered, cannot be made liable. The other point, that taking a specialty from one partner extinguishes all claim against the other partners, seems equally well settled. In the argument of counsel in support of the doctrine of Sheehy v. Mandeville, it is admitted, a bond taken from one partner extinguishes the claim, on simple contract, against the firm; in 2 Johns. 213, 220 it is expressly decided; in 4 Johns. 265, 268 is assumed as settled law; in Peters’s C. C. Rep. 301, above cited, Judge Washington says, “ a judgment against one partner extinguishes the simple contract debt as completely as if one had given his bond for it.” Judge Story, (1 Mason 505) doubts the justice and policy of this law; but the opinion of one judge, however respectable, is not to be set in opposition to the whole amount of decisions. On the whole, my brother judges all concur in saying there is error on both views, whether Anderson be considered [340] a dormant partner or not. Indeed, the judge in the Common Pleas says, the plaintiff cannot recover if Anderson was known to be a partner. Judgment reversed.