Rheem v. Snodgrass

The opinion of the court was delivered January 26,1858, by Porter, J. — This action appears to have been properly brought, and, with one exception, rightly tried. It was an awkward state of facts to provide a remedy for; but the plaintiff adopted the proper course, by joining those only who had a legal interest in the result. The 'contemporaneous equity proceeding was out of place. No man can be charged in equity as a partner, and sued at law as a debtor of the firm, for his adversary cannot place him in these incompatible legal attitudes. But the creditor cannot thus, even by his own blunder, be cut out of a just debt; and in this case, the defendant’s denial of the partnership, substantially stopped pursuit in that direction, for it bound him fast. In the action at law now under review, the agreement of June, 1849, was properly admitted, for the business had been commenced and carried on under it, and it sufficiently showed the connection between the parties, to warrant its introduction. The books produced were really those of the association, however they may have been inscribed; and, although it is better to call things by, their right names, it was not a fatal objection, that they appeared to have been kept in the name of the most active partner, with the addition, “and Uo.” In older commercial States, it is common, and in this country, not unusual, to transact business under- a title, which does not contain the name of an existing member of the firm that employs it. Leaving these points, there is an error which must be cured. The plaintiffs gave in evidence, an entry under [381] the date of 9th November, 1852, of “ eight car wheels, three of which are not yet delivered.” It is said, they were afterwards delivered on a written order. If the defendant received them, he ought to pay for them; but upon every principle, on which our decisions have gone, a shop book-entry, which shows on its face, that delivery was not made until after the date of the entry, is not admissible. The items, which should have been rejected, amount to forty-eight dollars. The .plaintiffs having agreed to remit that amount, without prejudice to their right, if any,' to recover it in another action, for the remainder of the sum, the judgment is affirmed.