Buck v. Mosley & Mallory

M. Justice Yerger delivered the opinion of the court. This was an action of assumpsit brought by the defendants in error on an account for bricks sold and work done for the plaintiff in error. On the trial below, the defendant offered evidence to show that he had made an agreement with Mallory, one of the plaintiffs, that the price of the bricks and work should be applied towards the payment of an individual note of Mallory held by the defendant; and that, when he made this agreement, he was ignorant that Mosley was a copartner of Mallory, and interested in the bricks and work. This testimony the court excluded. It is said that the court ;erred in excluding this testimony. But we do not think so^ jThe true rule of law on this subject is laid down by the Supreme Court of the United States in Rogers v. Batchelor, 12 Peters, R. 232, where it is held, that “ one partner cannot apply the partnership funds or securities to the discharge of his own private debt without their consent; and that, without their consent, their title to the property is not divested in favor of such separate [173] creditor, whether he knew it to be partnership property or not. In short, his right depends, not npon his knowledge that it was partnership property, but upon the fact whether the other partners had assented to such disposition or not.” The correctness of this rule has been recognized by this court in Minor v. Gaw, 11 S. & M. 326, and we adhere to itj We do not find any error in the action of the court excluding the testimony offered by the defendant, or in the instructions given to the Jury. But there is an error in the record, for which this cause must be reversed. It does not appear that the jury were properly sworn. The record says that the jury “was sworn to try causes, and upon their oath dó say,” &c. By frequent decisions, it has been held, that the record must show affirmatively that an issue was submitted to the jury, which they were sworn to try; otherwise the judgment is erroneous. 1 How. 24, 30; Ib. 496. Judgment reversed, and cause remanded.