Bunn v. Morris

Headnote

If severalpersons unite »n an adventure the profit and loss of

ASSUMPSIT for money had and received, the first count laying it to the use of the bankrupt before his bankruptcy ; the second, to that of his assignees. From the evidence disclosed at the trial, -the following appeared to be the circumstances of the case-.

which is to be shared and borne according to their respective proportions and the whole be received by a third person under an express promise to pay the shares of each, according to the several interests he can not set up any equities which one may have against the other, or object that they were partners, but must pay according to his promise.

Valentine, the bankrupt, being owner of one third of the sloop Mtncy, agreed with the firm of Jackson & Perkins, who were triers owning another third, to load the vessel for the West -Indies he to furnish one half of her cargo, and they the other 5 either party to make up any deficiency that might arise on Ms, or thefr side ; the whole, however, to be sold in the West-Indies, and the proceeds invested in a return cargo. But, except in this transaction, Valentine was totally unconnected in business with the partnership of Jackson 2c Perkins, who constituted a house distinct from him ; and even in the present association, they were to share in profit and loss, yet it was to be only portion to the lading they respectively put onboard. The vessel having sailed on her voyage, Jackson & Perkins, previous to her return, in consideration of 5000 dollars, expressed to have been paid, but when in fact not one had ever passed, assigned the whole of her return cargo to Abraham Varick, and the defendant Wisner u to be applied to take up all notes drawn by Jackson & Perkins in “favor of, and indorsed by Bennet 8c Brower, so far as they might “ legally be so applied and no further.” At the time of this assignment, which was totally unknown to Valentine, the assignees, Varick 8c Wisner were perfetly acquainted with the interest of Valentine, to whom no communication of the transaction was made, and on the arrival of the sloop, before which period Valentine had stopped payment, some difficulty about the division of her cargo being apprehended, the whole was put, with the consent of all parties, into the hands of the defendants to sell on commission, upon an express undertaking by them to pay separately to each house, its respective proportion of the net proceeds. Subsequent to this, the house of Jackson & Perkins became insolvent, and Jackson being examined, swore that Valentine had, after placing the property with Morris k Wisner, agreed that his share should, in the first place, be disposed of ifi satisfaction of such balance as might be due from him to Jackson & Perkins on account of the shipment and taking up of certain bills then unpaid, but indorsed by them for Valentine, in consequence of which, they had taken up notes to the amount of 1884 dollars 94 cents. Every word of this was flatly denied by Valentine, who deposed, .that he always declared to Jackson & Perkins, that the whole of his interest, in the cargo of the Mmcy, should go to his general creditors, and that.he forbade paying any of his notes, as both he and Perkins Ec Jackson were insolvent.

On this testimony the counsel for the defendants insisted the

plaintiffs ought to be non-suited. 1st, Because Ja c kso n & Perkins were so interested with Valentine m the cargo ol the Nancy as or otherwise, as to be enabled to make a legal transfer 0f the whole cargo. 2d, That the assignees, standing in the place of Smith Valentine, could recover no more from the defendants, than Valentine could have done from Jackson 8c Perkins, and as to trigh a balance was due, there consequently could not be a recova ery.

The judge having overruled the last position, reserved the first for the opinion of the court, and then, leaving the credibility of the witnesses to the jurors, charged for the plaintiffs, in favor of whom the jury found.

Application was now made to set aside this verdict, and grant a new trial for a variety of reasons. The decision of the court, however, was confined to the second only, which was, that allowing Valentine and the house of Jackson gc Perkins to be tenants in common of the cargo, and therefore, as between them no action would lie, yet the promise of the defendants to account separately to each, rendered them liable, independent of the nature of the tenancy,

It is immaterial how many persons were interested in the property in question, or of what nature their interests were; the express promise pf the defendants was to pay according to the several rights, and therefore, became a sep? arate engagement to each, for his proportion.

The benefit of this pro mise is claimed by assignees, and therefore subject to all the equities which could be urged against their bankrupt. The defendants are entitled under Jackson & Perkins ; whatever, theiefore, they might claim against Valentine, Morris and Wisner may, against his assignees.

Hopkins was told it was unnecessary to reply.