Newby v. Harrell

Davis, J., (after stating the case). 1. The first exception is to the refusal of the Court to give the instructions asked for. The Court is not required to give instructions, though proper and such as the party is entitled to, in the very terms asked; and if such as are asked for, to which the party is entitled, are embodied, substantially, in the charge as given, it is not error. In this case the instructions asked for were-substantially given, except the first, and that presents the question: Can one partner maintain an action against a co-partner for injury to his separate and individual property [156] used in the copartnership business, if such injury is the result of negligence or tort of the copartner ? It may be laid do wn as a general rule, that before one partner can sue another partner at law, the settlement of the firm must be complete, and his right to recover only arises after a settlement of all partnership business. Graham v. Holt, 3 Ired., 300; or, as laid down by Collyer on Partnership, § 269, one partner cannot maintain an action against a copartner to recover money, when the sum sought to be recovered might be placed as an item in the partnership account. Among the exceptions to the general rule is the right of one partner to maintain an action against another for the destruction of the joint property, or its wrongful conversion. Lucas v. Wasson, 3 Dev., 398; Collyer on Partnership, § 382. If one partner may maintain an action against another for the destruction of the joint property, a fortiori, may the action be maintained when the property destroyed is,the individual property of a partner used in. the business of the partnership ? 2. The defendants’ second exception is to the entire charge of the Court as set out in the record, without specifying or pointing out the errors therein, or the grounds of exception. This is too indefinite, but we have examined the charge of his Honor, seriatim, in view of the conflicting evidence, and no error appears to us. 3. The third exception cannot be maintained. Boyce was a regular juror, and there was nothing disqualifying in thé facts settled. 4. Exception is taken to the judgment, but upon what ground is not stated. It follows the verdict, and we can see no objection to it. Affirmed.