Eaton v. Whitcomb

The opinion of the court was delivered by He baud, J. The first question presented is, can the amount of the account in the name of Fuller & Shaw be recovered in this suit ? or had the plaintiffs a right to charge it over, and make it a part of their account 1 This will depend upon the contract of the parties. Without an agreement to that effect, it could not be done; and, by the agreement of the defendant, it might as well be charged as any thing else. The right to recover for every item of charge on book depends upon a contract in relation to the article, express, or implied. That the contract is special has been holden as no objection. That there is a particular agreement, as to the time and mode of payment, has been considered as forming no obstacle in the way of a charge on book; and in the recent case of Spear v. Peck, it was held, that an account stated might be charged on book, although the account, out of which the balance was ascertained, was beyond the jurisdiction of the court, to which the action was brought. [646] The auditor has found the fact, upon which the plaintiffs’ right to charge depends, to wit, that the defendant consented that this account might be charged in the plaintiffs’ account against him. This consent, when carried into effect, was in the nature of a contract, by which the defendant agreed, that whatever claim any one had upon him for that account might be prosecuted in the name of the plaintiffs. The other question depends upon the effect, that is to be given to the contract between Shaw and the defendant, in relation to receiving lumber for what there was due to Fuller & Shaw, and for such goods as he should afterwards take out of the store. It is a general principle of law, that one partner cannot divert the partnership property to his own use. It is also a principle of law, that each partner is the general agent of the firm, in relation to all business within the scope of the partnership. All these general principles are, to some extent, modified by the custom and business habits of the' community. It is usual for merchants to receive in payment all sorts of barter and articles of traffic. The case does not show that the defendant could be supposed to be influenced by any improper motive, at the time he made the contract with Shaw. The case of Strong v. Fish was for an existing indebtedness. In this case the defendant actually parted with his property, under a contract made with one of the partners. That Shaw was to use it for his own benefit could make no difference. He might do so, if the amount of the debt were paid to him in money. The principle is settled by the case of Strong v. Fish and settled to a point beyond what is contended for in this case. Judgment affirmed.