The plaintiff has brought this action of assumpsit to recover for a quantity of starch, which was received and sold by the defendant; and also, for money advanced by him for its transportation to Northfield. A recovery in the case is resisted on the ground that the property was received under a partnership contract and is involved in their partnership dealing and account; and that the remedy of the party is not at law in this form of action; but is confined to the action of account, or bill in equity, in which all the partnership dealing can be liquidated, the balance ascertained, and finally determined.
As a general rule, it is well settled, that no action of assumpsit can be sustained by one partner against his co-partner, in respect to any matter connected with the partnership transactions, or which would involve, the consideration of their partnership dealing. Chitty on Cont. 236. The reason is, "that it is impossible under that form of action to settle the partnership accounts, and that it would be useless for one partner to recover what, upon taking a general account, he might be liable to refund. Collyer on Part. § 264.
On the other hand, one partner may sustain an action at law, against his co-partner, "on an express contract, or covenant, to do, *Page 758 or omit to do, any particular act, not involving any question as to the general accounts. Thus, if one partner agrees to advance a specific sum of money as his proportion of the capital, an action at law will lie to recover that amount, even during the partnership. Such was the case ofVenning v. Lecker, 13 East 7, and Gale v. Lecker, 2 Starkie 107. So if money is loaned by one partner to another, for the purpose of forming the partnership, the money loaned can be recovered in this form of action if an express contract is made for its repayment. Collyer on Part. 264, note 4. Gow on Part. 72, 73. 19 Wend. 424. In the case ofWilliams v. Henshaw, 11 Pick. 79, MORTON, J., observed, "that if the "plaintiffs had shown an agreement on the part of the defendants "to advance one half of the money necessary to carry on their "joint speculation, or a promise to repay the plaintiffs for theirad"vances, they might well recover upon such undertaking in the "present action." We think this doctrine is sustained by the authorities, and that a just construction of the contract between these parties, will bring this case within its provisions.
The contract was made on the 19th of January, 1849, in which Mr. Collamer agreed to deliver to the defendant at Northfield, about 20 or 25 tons of starch by the 20th of February then next. By this provision it is obvious, that the starch was to be furnished or procured by Mr. Collamer, at his expense and on his sole responsibility. The defendant on the delivery of the starch at Northfield, agreed to take the same, dispose of it in market, and to pay the plaintiff for the starch, and the cost of its transportation to Northfield, amounting to $3,87 ½ per ton, by the 15th of March then next. The language of the parties, in their contract is in these words, "the loss or gain on the starch is to be equally divided between said Collamer and Foster, after Foster's paying Collamer $3,75 per hundred at Northfield, and $2,50 per ton for the freight from Barre, to Northfield, which Foster is to do by the 15th of March." In this language, there is an express promise to pay Mr. Collamer that amount by that time. We are led by this provision, to think, that the parties did not intend to treat the starch as partnership property. It was to be the property of Mr. Collamer, under an authority in Mr. Foster to dispose of it. In Bissett on Part. 60, 61, it is said, " that property which belongs to "one or more members of a firm, but not to all, or in other words, *Page 759 "the ownership of which is not co-extensive with the partnership "is not partnership property." The property, estimated at a given value, was to stand as a claim to be paid by Mr. Foster, at a specified time; the same as if so much money had been advanced to Mr. Foster, to launch the partnership, under an express agreement to repay the same on a given day. On this construction, the case falls within the rule and language of MORTON, J., in the case of Williams v. Henshaw. 11 Pick. 79. It was the use of that property during that period without interest, under an authority to sell it, with what should be realized on its sale, more than the amount which was to be paid to Mr. Collamer, which was to be applied against the personal services of the defendant, that was to be the subject of their joint interest and dealing. Under such circumstances, this action can be sustained.
But if the starch is to be considered as partnership property, the result, under this contract, will be the same. If there had been no express contract to pay for that property by the 15th of March, this action could not have been sustained; for, under such circumstances, the law will imply a repayment only of the balance after the liquidation of the partnership dealings. But the rule seems now to be well settled, that if the parties by an express agreement, separate a distinct matter from the partnership dealing and one party expressly agress to pay the other, a specific sum for that matter, the action of assumpsit will lie on that contract, though the matter arose from their partnership dealing. Collyer on Part. § 272. Bissett on Part. 128. Coffee v.Brian, 3 Bing. 54. Jackson v. Stopherd, 2 Cromp. Mees, 361.
In the case of Gibson v. Moore, 6 N. H. 547, it was held, that partners may separate any portion of the partnership effects from the rest, and that a promise to pay that sum is binding, and an action may be sustained for it, although it is not the final balance upon a settlement of the whole concerns of the partnership.
When it is stated in this contract, therefore, that the defendant will pay the plaintiff the sum of $3,87 ½ per ton, for the starch and cost of transportation, by the 15th of March, we can regard it in no other light, than as an express contract, on which this action can be sustained; as well, as if the defendant had given the plaintiff a promissory note for that amount payable at the same time.Vanness v. Forrest, 8 Cranch. 30.
The judgment of the County Court is affirmed.
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