Mulhollan v. Eaton

Carleton, J.,

delivered th.e opinion of the court.

The defendant being sued upon a. promissory note which he had given to the plaintiff, pleaded in his answer, that at the date of its execution, he was in partnership with the plaintiff in buying and selling slaves. That it was then agreed upon a final settlement of their joint concerns should take place before the note became due, and that in the meanwhile, payment thereof should not be enforced. That the plaintiff had, nevertheless, constantly refused to make such settlement; that whenever the same shall take place, it will appear that little or nothing will be coming to the plaintiff, and that the note was therefore given in error, and without consideration.

Where partners make a settlement of their partnership concerns to a certain period, after the expiration of the partnership, and one of them executes his promissory note for the return of the capital which the other put in, he cannot claim, a final settlement of all the partnership affairs "before he is compelled to pay his note.

He concludes by praying that their partnership transactions be first adjusted; that the plaintiff be decreed to pay any balance that may appear to be due, and for all further relief that the law affords.

The ease was submitted to the court, who decreed in favor of the plaintiff, and the defendant appealed.

The only evidence adduced at the trial, is that which was obtained from the plaintiff himself, by interrogatories propounded and annexed to the defendant’s supplemental answer.

From this it appears that the plaintiff had brought into the partnership, fifteen thousand dollars, which he delivered to the defendant, who had the sole agency and control of the enterprize. That the parties had a settlement of their affairs in the spring or summer of 1835, in pursuance of which the note sued on was given in part re-payment of the capital advanced by the plaintiff, the balance being made up of ready money, and a slave delivered at Richmond in Virginia. That although a portion of their partnership affairs still remains unadjusted, yet they had been finally liquidated up to the period at which the note was given.

As the truth of the statement drawn from the plaintiff is not impeached or opposed by countervailing testimony, we presume it discloses the true nature of the dealings that took place between the parties ; and notwithstanding the remedy by which partners may compel each other to account, and such as is contended for by the defendant’s counsel, yet by the settlement voluntarily entered into between the parties, they have made a law unto themselves, and we see no reason why the defendant should be released from his obligation.

We do not perceive any error in the decree of the court, and think it ought not to be disturbed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.