Bulkley & Wheeler v. Dayton — 14 Johns. 387

Majority

p. 389

Bulkley and Wheeler against Dayton and others.

NEW-YORK,

October, 1817.

Headnote

A release by one partner, of a debt due the firm, is binding upon all the partners. A re!ea=e to a witness, by one joint alone, is suf. ficieot to his A release bv a plaintiff to a witness, of all demands against the witne-s, such for which the is liable in conjunction with the in the suit, renders him a competent for the plaintiff, as he is thereby from all individual to support the plaintiff’s recovery against the defendants, admitting that the witness, and not the t-iwt nts* the person chargeable ; and if the witness were liable as a partner, jointly with the defendants, null the exception in the release does not affect his competency, for. in that case, if the plaintiff recovered, he would be bound to contribute his portion of the recovery,-and thus his interest ia in favour of the defendants, asd against the party calling him. *

THIS was an action of assumpsit. The declaration counts on a promissory note, for gobds sold and delivered, and the common money counts.

At the trial, at the Washington circuit, in 1817, the plaintiffs -sought to recover on the promissory note mentioned in the on certain agreements, respecting the sale and of goods, and on a demand for money had and received by the defendants, as the agents of the plaintiffs, in the sale, in Canada, of a quantity of lard, which had been intrusted by the plaintiffs to the care and disposal of the defendants. A variety .of evidence was produced on both sides, but it is unnecessary to state more than what related to the single point decided by the court.

John Borokcr was called as a witness on the part of the

p. 390

tiffs, who appeared, and was willing to testify, hut was objected t© by the counsel for the defendants, on the allegation that the witness, and Reynolds, one of the defendants, were separately liable for the plaintiff’s claim, on account of the sale of lard in Canada. To obviate this objection, a release was produced and delivered to the witness. This release was executed only by the plaintiff Eulkley, who was one of the partners of the firm of Bulkley §• Wheeler, and discharged the witness from all claims which the plaintiffs had against him, either alone, or in conjunction with the defendant Reynolds, but expressly excepted such claims as they might have against the witness, in conjunction with all the defendants, The release was objected to, because not executed by both the plaintiffs, and the objection was allowed by the judge.

The plaintiffs voluntarily submitted to a nonsuit, with leave to apply to the court for a new trial.

The motion for a new trial was argued by Richardson and Wendell, for the plaintiffs, and Z. R. Shepherd, for the defendants.

Several points were raised and discussed, but as the court took notice only of the point as to the rejection of the witness Bowker, it is unnecessary to state the arguments of the counsel.

Upon the argument of this case, several questions were raised and discussed, which it will be unnecessary now to notice, as we think the cause must be sent back to another trial,, because Bowker, a witness offered on the part of the plaintiff, was excluded, after being released. The objection to the release, that it was not executed by both the plaintiffs, was not well founded; one partner may release a debt due to the firm. It is a general principle of law, that when two have a joint personal interest, the release of one hairs the other. ( 3 Johns. Rep. 70 ., and cases there cited.) Nor was this release void, or insufficient, by reason of the exception contained in it. The witness himself made no objection to being examined ; and after the release, with the exception which it contained, the interest of the witness was against the party calling him. He was interested to defeat the plaintiff’s claim altogether, for in that event, and with the release he had, he was completely exonerated from the payment of any part of this demand, in

p. 391

e.vcry possible way, either individually or with others. The defendants objected to Bowicer, because the plaintiffs, claimed in this suit, money received for lard sold in Ganada, and for which they, the defendants, insisted Bowkcr and Reynolds were alone iiablc~ If this allegation was true, the witness, before the was given, was interested to throw this claim upon the defendants. But the release discharged him from any claim for this money, either individually, or with Reynolds; all the interest left was against the plaintiffs; for if they recovered in this action, and Bowicer was a partner with the defendants, he would be bound to contribute his share of the recovery. The motion for a new trial must, therefore, be granted, with costs, to abide the event.

New trial granted.