Austin v. Vaughan

Land, J. The plaintiffs and defendants were the owners of the steamer D. S. Stacy, employed in carrying personal property for hire. The plaintiff instituted this suit against his copartners for the recovery of a specific debt due him from the partnership. The copartner, Vaughan, pleaded in compensation specific debts due from plaintiff to the partnership. The compensation opposed by Vaughan was allowed by the judgment of the lower court, and the plaintiff condemned to pay the difference between his demand and the amount opposed in compensation. The evidence shows that the partnership accounts are unsettled, and that a judgment in this case on the demands of plaintiff and defendants, will not have the effect of a final liquidation of the partnership affairs — -the legal consequence of which may be, under the judgment of the lower court, to condemn the plaintiff to pay Vaughan a partnership debt, when Vaughan really may be a debtor of plaintiff on partnership account. The judgment should have been one of non-suit as to the demands of both partners. It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court: It is ordered, adjudged and decreed, that there be judgment in favor of defendant as in case of nonsuit on plaintiff’s demand; and that there be judgment in favor of plaintiff, as in case of nonsuit, on the demand opposed in compensation. It is further decreed, that the defendant and ap-pellee pay the costs of this appeal; and that plaintiff pay the costs of the lower court.