Hart v. Tomlinson

Hutchisson, J.

pronounced the opinion of the Court.

If the defendant ever had any claim against the firm of Richard P. Hart & Co. for his present demand of $61, it was before French became a member of the firm. Had he commenced an action for the same, he must have sued Richard alone, ox Richard and Philip, Jr. He could not have recovered against Hart and French, for French ms never his debtor. He says he knew noth" ing of the change of partners in the firm, when he contracted the debt sued for: but nothing appears but that he might have known, had he inquired. He might have seen it in the Gazette, had he examined in the most probable place, to wit, the residence of the firm. He does not say that he made any search or inquiry. Had he desired to take up the goods in payment of his old demand at the store, he might have contracted so to receive them, and might have refused to receive on other terms. If he received them, in the ordinary course of trading upon credit, without then claiming them in satisfaction of an old debt, and without inquiry for the names of the firm, it authorised a charge against him in the name of those who then constituted the firm, and leaves himno just claim to have the same applied in satisfaction of an older claim against other partners of the same firm.

This demand was so far from being a debt against French, that any attempt of Hart and Tomlinson to make it a debt against French, by putting it into a note or otherwise, would have been a fraud upon French, and unavailing in law and equity. When French became a partner on the 1st ol April, the deal of the old firm with this defendant was on the books of the old firm, which were balanced on the 29th of the same month. After this, if French saw those books at all (and it seems he had no interest to see them) he must have seen the account balanced. The defendant was there in the fall, and learnt how the books stood, and says he objected to the allowance of the discount, but does not say that French then knew of his objections, nor that he obtained any assurance of relief from any persons ; nor, in fact, that he sought any. The next winter, after all this, the account now in suit was begun. We discover no reason why French should be considered a debtor to the’tiefendant in this matter. If he was no debtor,and liable to no suit for the same, he is no more liable to have it come in upon the rendition of accounts; which, to be allowed, must be mutual.

But, it is suggested, that this demand of the defendant, being against Richard P. Hart, and French being dead, and Hart pursuing this action as survivor, the demands have become mutual. The facts do not support the reasoning. It is very probable, and indeed almost certain, that the demand of the defendant is against Richard P. Hart and Philip Hart, Jr. They constituted the firm when the draft was received. That, prima facie, shows them jointly accountable for the avails. And nothing appears in the case to alter that liability. Hence it does not appear that the defendant could pursue Richard P. Hart as his sole debtor. If hot, his kécóming sole plaintiff in this case, by survivorship, creates • no mutuality, not even in the form of action. Furthermore, all ‘questions about the mutuality of claims and all the evidence of the several claims must be the game now as if French were alive: and the decisión must be the same. His heirs are entitled to his estate, now he is dead, without diminution, occasioned by the payment of the debts of the former partners.

Peter Starr, for plaintiff.

S. S. Phelps, for defendant.

The judgment of the County Court is affirmed;