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ticular place,” or the words with him for the opinion there 18161 “ accepted, payable at, &c.” given was, the constant and were not words restricting or undeviating usage of mer

Head qualifying the acceptor's lia- chants; who never considered and Another bility, but rendering him gene- such an acceptance to be a re

SEWELL. rally and universally liable, strictive acceptance ; that it and that it was not necessary was mere matter of convenient to prove a demand at the par- arrangement, and did not raise ticular place in an action any obligation, on the part of against such acceptor. Lord the holder, to demand payment Ellenborough added, “ that at the particular place.” whatever cases might be ad: Upon this judgment a writ duced in favour of, or against, of error was brought in the the doctrine laid down by House of Lords; and the case K. B. in Fenton v. Goun.

is now pending for judgment, dry, an invincible argument

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bec. I.


8. Upon the HIS was an action on an account stated. 1€ dissolution of a partnership, appeared that the plaintiff and defendant had and a mutual statement and been in partnership as appraisers and auctioneers. settlement of accounts,

The original partnership was contracted by articles, there is an im- not under seal, which contained several provisions: plied promise in law, on the l. That a regular deed of partnership, with the against whom usval covenants, should be drawn up. 2. A spea balance is found, to pay

cial clause ; that, in case they should dissolve partand an express nership within fourteen years from the commencepromise to pay ment of the articles, Reither should be at liberty to

carry on the like business in any part of the united 2. A partnership is kingdoms within seven years dext ensuing. No commenced by articles un- deed of partnership was entered into in pursuance sealed, in which is con

of the articles ; and the plaintiff and defendant, tained an

after carrying on business for some time togeagreement for a co-partner- ther, agreed to a dissolution. In May, 1816, ship deed. Such partner

the dissolution was regularly advertised in the ship may at any time be London Gasette. On the 25th of June following, patol: and'al- they met together to adjust their accounts. At though one partner refuse to sign the deed, when tendered to him, he is not thereby precluded from recovering a balance due to him on the partnership account in an action of assumpsit.


this meeting the books were produced, and the 1816. plaintiff claimed of the defendant a balance in

RACKSTRAV his favour of 2151. The defendant admitted "

0. the sum to be due; and offered to pay it, if the IMBER. plaintiff would sigo a deed which he tendered. In this deed was contained the restrictive articles as to carrying on the like trade within seven years. The plaintiff refused to sign the deed, and brought the present action for the money.

Lens, serjeant, for the defendant. The plaintiff is not entitled to recover. In order to enable one partner to maintain an action against another for the balance of an account, two things must concur :- 1. A dissolution of the partnership. 2. A clear and unconditional promise to pay. In the present case, notwithstanding the partnership might be considered at an end as to third per.' sons, it was not dissolved by the parties themselves. The articles still exist; and either might call upon the other to enter into a deed of part. nership. 3. The promise to pay the balance was modified by a condition-I will pay, if you will sign this deed; which you have agreed by the articles to sign. The undertaking, therefore, was not absolute, but conditional; and, allowing the partnership to be dissolved, there must be such an adjustment of accounts as would raise, by inference, a promise to pay. In the present instance, the promise is neither expressed nor im


Best, serjeant, contrà, relied on Foster v. Alan



son, 2 T. R. 479. The partnership is dissolved ;

and a balance is struck, which the defendant adRACKSTRAW

mits to be correct. He is then required to pay, IMBER. but he replies by producing the deed. The cove

nant, which he wished the plaintiff to sign, was illegal. It is contended that there is no express promise to pay; none is necessary ; the account being settled, and the balance admitted, the law raises the promise.

GIBBS, C. J.—The plaintiff is entitled to recover. A partnership, which is formed by parol, may be dissolved by parol. The account having been settled between the plaintiff and defendant after the dissolution of the partnership, and a balance struck, the partner who has a balance in his favour has a clear right of action to recover it. The defendant insists that he will not pay unless the plaintiff executes a deed with a restrictive covenant. He has no right to annex such a condition to his payment. My brother Lens mistakes in supposing that it is necessary that there should be an express promise. The action is not brought upon any express promise at the meeting of the 25th of June ; but upon the implied undertaking. This I consider to be sufficient. The dissolution of the pre-existing partnership, and the mutual settlement of an account, are a sufficient consideration in law for an implied promise to pay a balance on the side of the partner from whom such balance is due.

Verdict for the plaintiff. Best, serjeant, and E. Lawes, for the plain-. 1816. tiff.

RACKSTRAW Lens, serjeant, for the defendant.


Vide dlanson v. Foster, 2 T. R. 483.

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