Willard v. Collamer

Aldis, J. I. The account as originally charged on the plaintiff’s book was about $190. This remained the debit [597] side of the book while that account was open. If that had been balanced and closed by. agreement of the parties when Town paid the $149, and the balance ($48.64) had been transferred to a new account, then such balance would have been the debit side of the plaintiff’s book. But Town’s payment was simply credited on the account, and the account left open •and not settled and closed ; hence the debit side remained as before ; and the jurisdiction of the county court is. sustained. Reed v. Talford, 10 Vt. 568. II. The defendant sold the notes and mortgage which he had bought for Merrill to Trow, at Merrill’s request, and at a discount of $25. It seeins obvious that Collamer ought not to lose the $25, when the act which produces the loss is done not for himself but for Merrill. We think he is to be regarded in the sale as acting for Merrill — as his agent. It is a just debt as against Merrill, and was so regarded by him, for he agreed to pay for it in professional services. Is it a proper offset on the account of Merrill & Willard ? Before the partnership was formed Merrill promised the defendant to pay him in professional services. After Merrill & Willard were partners, and the defendant had employed them in the business here charged, Merrill again agreed that their account should apply on the defendant’s debt; and both Merrill and the defendant conversed with Willard and he fully assented to the arrangement. Thus we have the prior agreement of one partner that this debt should be paid in professional services. We may well infer that the firm was employed to render the services by the defendant upon the faith of this promise, and we have the subsequent assent of all the parties to this prior agreement of Merrill. The cases of Fay et al. v. Green, 1 Aik. 71, and Strong v. Fish, 13 Vt. 277, go quite beyond this. See the dictum also in 17 Vt. 237. Here the subsequent assent of W illard may be regarded as fully ratifying the previous agreement of Merrill. It is not necessary for us, therefore, to inquire whether one partner can apply the partnership property to pay his private debt without the assent of his co-partner, or what is the extent and what the limits of the rule on that subject. [598] Upon this basis the plaintiff -would be entitled to recover only the $32.14 and interest from April 1, 1861. The other charges in the defendant’s account for raising money-on the Langdon and Trow mortgages seem, upon the auditor’s-finding, to be merely charges to cover usury, and are not allowed. Judgment reversed as to the larger sum, and judgment for the $32.14 and interest from April 1,. 1861.-