Whiting v. Farrand

Swift J. This was an action to recover payment for books contracted to be delivered to the defendants. It appears that the books were shipped from New-York for Boston by a packet in the usual course of trade, but were lost on the passage. The defendants, in the first place, contend, that the books were at their risk, and they are not liable for the loss. Where a contract is made for the sale of goods which are not delivered, but are to be sent to the purchaser, if the vendor send them in the mode of conveyance agreed on by the parties, or directed by the purchaser ; or if no agreement be [64] made or direction given, in the usual mode ; or if the purchaser being informed of the mode, assents to it; or if there have been sales and conveyances of other goods, and the vendor continues to send them in the same mode ; then the goods are at the risk of the purchaser during their passage. In this case, it appears from the contract, that the books were to be sent by water, as interest was to be computed from a certain time after the shipment ; that this was the usual mode of conveyance from New-York to Boston ; that the defendants were duly informed of the shipment of the books, and assented to that mode of conveyance by giving credit for them ; and that sundry other parcels of books on the same contract had been shipped by the plaintiffs, and received by the defendants. Of course, the books in question, when shipped, were at the risk of the defendants, and they are liable to pay for them, though lost on the passage. It is further insisted on by the defendants, that their co-partnership was dissolved prior to the delivery of the books ; and that the plaintiffs could not afterwards deliver them, and bring this action to recover payment for them, but that their remedy is by an action for a breach of contract arising from the dissolution of the copartnership. Copartners may dissolve their connexion at pleasure, and this is no violation of any subsisting contracts with others ; for they may, and they are bound to perform them in the same manner as if no dissolution had taken place. No action can ever be sustained against them stating a mere dissolution of the partnership as a breach of contract, for they can perform it notwithstanding such dissolution. In the present case, the contract being executory, the plaintiffs could have no right of action till they had performed on their part. If then a dissolution of the copartnership by the defendants could prevent the plaintiffs from delivering the books, and excuse the defendants from receiving or becoming chargeable for them, it would be in the power of a partnership, by its own act of dissolution, to destroy a previous and subsisting contract. This would be directly subversive of the principles on which all copartnerships are founded. In this opinion the other Judges severally concurred. New trial not to be granted.