Scott v. Shipherd

Williams, J. pronounced the opinion of the Court. — The exceptions which have been taken to the report of the auditors assumed as a fact that the auditors have charged the defendants with a demand which was due from John J. Shipherd to the plaintiffs, and that this was done either on the testimony of said John, or in consequence of the directions of one of the partners after the dissolution of the partnership. If either of these facts appeared from the report, the objections to it Would be fatal. A man cannot by his own oath transfer a debt due from himself to another. Nor can a partner, after the dissolution of the partnership, charge the firm with any debts which they did not owe before the dissolution. But it is expressly found that no credit was given to John J. Shipherd for any part of the account found due to the plaintiffs, and that the articles taken by him, and which Were charged cm the plaintiffs books to him were delivered to him solely on the Credit of the defendants and by their authority. One of the defendants directed the said John to take such articles as he might Want for the Use of his family, while he was boarding the hands employed by the defendants. As this was for the benefit of the firm, and was undoubtedly considered as paying John J. for boarding their hands, it might well be considered by the plaintiffs as having relation to the business of the firm. One partner may bind another by a contract when the subject matter of the contract is consistent with the business of the partnership. There is nothing in the manner in which this account Was kept that will either legally or equitably discharge the defendants. The manner was directed, not by the plaintiffs alone, or for their benefit, but by the agent of the defendants, and for his and their benefit. It does not appear that the defendants were deceived or defrauded in consequence of these charges being made in this Way. The manner in which the charges were made was evidence to be considered by the auditors, and tended to prove that the credit was given to John J. Shipherd alone, but it was not con109 (elusive, and the auditors have expressly found that the credit was not given to him, but to the defendants. From this finding of the auditors it is apparent that John J. Skipherd never was liable to these plaintiffs for the articles charged to him by the plaintiffs, but that the defendants alone were accountable. Tucker, for plaintiffs. Hawley, for defendants. The direction given by Zebulon R. Shipherd, after the dissolution, would not have bound the other partner, if they were not originally liable, and was not otherwise relevant to the cause except as it was evidence of the original contract. John J. Shipherd was properly admitted as a witness. If he was a partner he was in interest with the defendants, and it was not an objection to be made by them : and if he was only an agent, there could be no objection to him. We are inclined to the opinion that he was a partner : but it was not necessary to decide upon that point, as he was clearly an admissible witness. It does not appear what facts the auditors found from his testimony, or that any other objections were made except that he was a partner with the defendants. If he was originally accountable for the goods delivered to him, or for any part of the account found due from the defendants, or, in other words, if it was ever his debt, he could not, by his own oath, discharge himself and charge the company ; and this would be equally true whether he was a partner or whether he was not. But the auditors have found that he was never accountable for any part of this demand; that the goods charged to him were delivered solely on the credit of the defendants, and that the charge to him was in the nature of a memorandum to distinguish that part of the account, for which he was individually liable to the defendants, from the other part. From the facts reported by the auditors, the plaintiffs were entitled to judgment. The judgment of the county court is, therefore, affirmed.