Caswell v. Cooper

Scates, C. J. The testimony given by defendant, Cooper, having been received without objection, it is too late to raise it in this court. From that statement of defendant, it appears that plaintiff would be indebted to him upon final settlement of partnership dealings. The partnership had been dissolved, and defendant had assumed the entire control of the goods on hand, apparently upon the ground that all the partnership effects would belong to him on settlement. In disposing of the goods, the articles in the bill sued for in this case, were sold to plaintiff", by defendant, at plaintiff’s request, and for which he signed a bill of sale, acknowledging the purchase of defendant. Under the state of facts shown in this case, we see no reason why defendant may not sue at law for the value of these goods. The action is supportable upon principle, and is strongly analogous to Rockwell v. Wilder, 4 Metcalf R. pp. 561-2; Smith v. Allen, 18 John. R. 247, and Vam Ness v. Forrest, 8 Cranch. R. 30 (3 Cond. B. 102), were decided upon, and to support the same distinction from, or exception to the general rule. That is correctly laid down in Davenport v. Gear et al. 2 Scam. R. 498; Frink et al. v. Ryan, 3 ibid. 325, and Bracken v. Kennedy et al. ibid. 564. The reasons which apply to the case of one partner suing another, or a firm suing a partner, or a partner suing a firm, for a partnership transaction, do not apply to such a transaction as this. Here defendant for himself, sold the goods to the plaintiff, taking a promise to pay to himself, and not to the firm. The condition or proviso upon which it might have been defeated, not appearing to have existed, we must treat it as an absolute sale, and an absolute promise, individually, to defendant. We perceive nothing in the rule, nor the reasons of the rule, which forbid a suit at law under circumstances like these. Partners, unless restrained by articles or agreements, may withdraw of the funds or property for their individual use. And so one partner may appropriate, by the sale, and a promise of payment to himself individually, the property or its value. If made without fraud the purchaser would be protected, although a partner, and an action at law might lie upon the promise, although the amount, when recovered, might, in equity, be treated as partnership effects in his hands. Such, we think, is clearly the scope of the principle of express promises. We need not discuss it in the whole extent of its application to partnership transactions or property. There might be ' circumstances under which it would be extremely difficult to distinguish. We leave extreme cases to be passed upon, when presented. This is not one of them, and we think there is no error in the instructions given. Beside the smallness of the sum, would require a clear case before we should compel a party to seek redress by the more tedious and expensive proceedings of a court of equity for an account. Viewing all the points raised, and we still find no ground of interfering. The objection here to defendant’s statement in evidence, comes too late—the court had full power to make a formal emendation of the verdict—and we find no error in the instructions. ' Judgment affirmed.