Byrd v. Fox

Scott, J., delivered the opinion of ihe Court. Fox sued Byrd in a justice’s court, where, after judgment, the cause was taken to the Circuit Court, when, upon a trial de n'óvo, he recovered judgment for $37, from which Byrd appealed to this Court. It was agreed between Byrd and Fox, that Byrd should go to Fort Leavenworth, and put in a bid in their joint names, to furnish the garrison with fifteen hundred cords of wood, and that they should be equal partners in the contract; that Byrd might bid as he thought most advisable, and Fox would be responsible jointly with him for his acts. Byrd made a bid for the contract, and his bid was the same with those of two others : it was then agreed among the several bidders, that Byrd and one of them should together have one-half of the contract, and the other bidder the remaining half. Byrd sold his interest in the contract for seventy-five dollars, and afterwards told Fox that he had made a good bargain, and would pay him his half of the profits as soon as he could get some money; that he considered, if any loss had happened, Fox would have borne his share of it. The only questions arising upon this statement of facts are, whether there was a sufficient consideration for the promise of Byrd, and whether, being partners, if one could sue the other in an action ex-contraclu. As to the first point, it has been held, that damages may be recovered on an agreement by a partner to admit a stranger into the firm, and that the undertaking of the stranger to become a partner is a sufficient consideration for such an agreement. (23 Eng. Com.Law Reports; 9 Bing., McNeil vs. Reid.) So, it has been held, that an action may be supported 'by one person against another for breach of a promise to become a partner.— Figes vs. Cutler, 3 Starkie’s Rep. As to the second point, the law seems to be settled, that if there are partnership dealings, and one item only remains unadjusted, the difficulty as to one partner maintaining assumpsit disappears. (Robson vs. Curtis, 1 Stark. Rep., 78; Mussier vs. Trompbone, 5 Wend., 274.) In this case there was but one item, and that one item adjusted by an express promise to pay. Judge Naptox concurring, the judgment is affirmed- Judge Tomvk-iks dissents.