Walden v. Sherburne — 15 Johns. 409

Majority

p. 409

Walden and Walden against Sherburne and Eakin.

Headnote

A. and s. citizens of the United, States, mrtnlrstip in France, agreed, in September, 1806, to dissolve that partnership, and that B. should establish himself in. Aero- York, A> remaining in Frunce; that they should exert themselves to procure consignments from the United Stales ; that A, should ship, goods to B the amount of which, and such sum as B. could procure by association, loan, or credit, were to be converted into reasonable advances on goods consigned to A.; that on shipments made by A. to the United Stales, by order of B., B. should receive one third of the profits, and on shipments by B. to France, A. should receive one third of the profits, and that B. should have one third of rhe commissions on consignments, from the UnitedSlates to A.; that a statement of their respective accounts was to be made at the end of each year, and that if one of the parties had incurred losses, that the other was riot to be answerable for them, beyond* a forfeiture of the profits of the year. According to this agreement, B. established himself as a merchant in Nero-York, and having contracted debts in relation to his business : Held, in an action against A. and B., that by this agreement they were partners, there being a community of profit and loss ; that as the debt, being principally for money lent, had relation to the partnership concerns, the plaintiff was entitled to recover ; and that it was not necessary for him to show that the money lent or credit given was used for the benefit of the partnership; and that the stipulation limiting the extent of the liability of each of the partners for losses incurred by the, other, although valid between themselves, could not affect other persons.

Where one of two partners executes a bond for duties on goodsimported, with a surety, and the-surety advances his co-obligor money with which lie pays the bond, he may maintain an action against both the partners for the money lent, this being a partnership transaction ; although had the surety himself taken up the bond, he could only have Brought an action for money paid, against the partner who executed it.

An admission by one partner, after dissolution of the partnership, of a balance due from the firm, does not bind the firm; but entries made by one of the partners, during the partnership, in a book of accounts, are admissible evidence against both.

Ifa party in a cause to substantiate a credit m his own favour, produce an account made oul(by the opposite party, he renders it evidence against himself in the first instance; but he is still at liberty to disprove the charges in the account.

Interest is due on a balance of account from the time it is liquidated; and it is to be considered as liquidated when rendered, if no objections be made to it. When a verdict is taken subject to the opinion of the court, the court may draw the same conclusions from the evidence, as the jury ought to have done.

THIS was an action of assumpsit for goods sold and de- . , . , . , -it hvered, money had and received, money paid, and money lent and advanced. The defendant, Sherburne, alone, was taken and appeared. The cause was tried before Mr. J. Platt, at the New-York sittings, in November, 1817.

It was admitted,, that on and before the 29th September, 1806, the defendants were partners transacting business at Nantes, in France ; and that on the 30th of September, they entered into the following agreement:

66 We, the undesigned, Samuel Sherburne and Samuel Hunter Eakin, both natives of the United States of America, having established a house of commerce at the city of Nantes, in France, on the 21st day of May, 1804, under the firm of Sherburne Eakin, and now, for the purpose of promoting the generalas well as individual interest of eachparty, having found it expedient to establish a commercial house in New-York, we have unanimously agreed to dissolve our

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foregoing partnership, at this place, on this present day, and that our future concerns shall be conducted on the following terms and conditions, viz.

“ 1. The principal objects of our respective establishments tending towards procuring consignments on commission from the United States, we hereby pledge ourselves and honour to use our best endeavours and exertions in the attainment of this object.

“ 2. In order to facilitate the better its execution, the said Sherburne engages to ship, from time to time, such goods as may be deemed suitable for sale in the United States, directed to the said Eakin, for account of himself, for such ■ American citizens as he may point out.

“ 3. The said Eakin engages to convert all such amounts, likewise any sum he may be able to command, arising from association, loan, or credit, into reasonable advances on goods consigned for sale to the house of the said Sherburne : the said Eakin taking the needful precaution of causing insurance to be effected thereon.

“ 4. All shipments of goods made by order of said Eakin, and to his address in the United States, shall be for his account and risque ; but it is hereby agreed, that one third of the nett proceeds arising from the sales of said goods, (if any there are,) after deducting two anda half per cent, commission, shall be carried to the credit of said Sherburne''s account.

“ 5. On all consignments of goods received from the United States, whether arising from shipments made directly to the said Eakin, or from his friends, in consequence of his influence, and exertions, or orders, the said Sherburne huereby agrees to account with the said Eakin for one third of the nett commissions arising from such consignments: and it is further understood, that the present conditions shall be made reciprocal.

“ 6. When shipments of goods are deemed prudent to be made bj the said Eakin, on his own account, consigned to the said Sherburne, it is hereby agreed that the present voluntary and mutual exchange is to take place.

“ The said Sherburne shall receive one-third of the nett

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profits, when any there are, on such adventures, and the said Eakin one-third of the nett commission arising therefrom, for each of which the respective accounts of the parties shall be credited; and in order that no misunderstanding, or discussion, may take place on this head, it is expressly agreed and obligatory on both parties, that on the 31st day of December, in every year, a letter should be written, copied, and addressed to each other, announcing the sum for which the respective accounts are credited, for such share of profits or commissions gained during the year. It is furthermore agreed on between the parties, that the foregoing arrangement, as regards a repartition of profits and commissions, is assimilated to the principles of a commandite, that is' to say, if any losses should arise on such adventures, they shall be deducted from the account of profits made in the year; and in case they should exceed these last, no further responsibility can be laid on the said Sherburne than the forfeit of profits made; and, in like manner, if any losses should happen to the said Sherburne, in consequence of such consignments received, either by guaranty, or any other direct cause, then the said Eakin only to be liable to contribute thereto for as much as may be due him arising from the same species of profits made in the year, the result of all which shall be respectively made known at the end of each year as aforesaid.

“ 7. The accounts concerning adventures per Julia Ann and Franklin being the only remaining to settle, the said Eakin engages to settle the same in the United States, and in case of a loss thereon, (which we have no reason to expect,) it shall be deducted from the gross amount of first profits, arising from our'future concerns.

“ 8. All other accounts existing between the contracting parties, being settled and acknowledged this day, and the present instrument being specially to regulate our future concerns, we have signed it double to this effect, at Nantes, September 30th, 1806.”

The plaintiffs produced and proved an account current between them and Eakin, on which there was the following endorsement, in the hand writing of, and subscribed by Eakin : “ I do hereby certify the foregoing to be a true ac

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count with Messrs. Jacob and Thomas Walden and myself, Qn(j there is a balance due them of five thousand eight hundred and two dollars, fifty-four cents, and which has been contracted since my connection with Samuel Sherburne of Mantes. Mew-York, September 15, 1808.” It was admitted, that after the foregoing agreement between the defendants was entered into, Sherburne continued at Mantes, and transacted general business in his own name, and Eakin removed to Mew-York, and conducted business in his own name, In order further to establish the existence of a partnership between the defendants, the plaintiffs produced in evidence, Sherburne^s account current with Eakin, and a number of letters from Sherburne to Eakin, during the years 1807 and 1808, the period during which they were contended to be in partnership, in which letters, the agreement of September 30, 1806, is frequently referred to and recognized : but as the court did not consider these letters, or those of Eakin in answer to them, as of any material importance, it is thought unnecessary to state their contents, except that in a letter from Sherburne to Eakin, dated Mantes, 30th of May, 1808, he says :

“ I have received your several letters, &c. Their contents treat generally on the subjects of the misfortunes of the country at large, of yours individually, owing to the violent measures adopted by the powers at war, and finally of the several drafts you have drawn on me, for all which I am extremely sorry, and particularly of your confidence of drawing me into the common ruin. You have calculate^ on too much complaisance on my behalf, even admitting my means were adequate to your object, and after a mature consideration of the present state of affairs, and prospect of duration*; of the statement you have made of your business ; the deficiency and little prospect of your being able to redeem your losses ; and, finally, that even by advancing a share of the sum you require, without the whole, would not alleviate your situation, I have taken the determination not to accept your drafts. This resolution is founded principally on the present state of non-communication and annihilation of all commerce, and it was one of the articles

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of our convention, that “ no hills are to be drawn on each - other without funds in hand.” In consequence of what is said heretofore, I shall consider all our concerns at an end, and beg you will cease all exertions in favour of my commercial establishment.” By an endorsement on the letter, it appears to have been received on the 18th oí August, 1808. The letters from Ealcin contained advices of bills which he had drawn on Sherburne, several of which were in favour of the plaintiffs.

The defendants produced in evidence an account, entitled as follows, “ Messrs. Sherburne cy- Eakin, in account ^current with Jacob and Thomas Walden,” in the hand writing of the plaintiff T. Walden, in which the defendants were charged, on the 1st oí February, 181/, with a balance of 4,405 dollars, 20 cents, and were credited with the sum of 663 dollars, 37 cents, on the 28th of December, 1811. There were also other credits, as well as charges, arising subsequently to the account rendered to Eakin, and not included therein. The plaintiffs objected to the admission of the credit of'663 dollars, 37 cents, on the ground that a suit had been brought by Sherburne alone, against the plaintiffs, for that item, and was still pending; but the judge admitted the defendants to the benefit of the credit for that sum.

It appeared that some of the bills, mentioned in the account, drawn by Eakin in favour of the plaintiffs, upon Sherburne, were given in payment of money advanced by the plaintiffs to Eakin. The counsel for the defendants objected to the allowance of the damages claimed in the account current, on the bills returned under protest, on the ground that the plaintiffs, under the circumstances, were not entitled to damages, and, if they were, they could not recover them under any count in the declaration. The judge admitted the objection, but gave leave to the plaintiffs to strike out the bills, and the monies paid on account of them, from both sides of the account current.

The plaintiffs, also, produced in evidence, a waste book, which was proved to be in the hand writing of Eakin, and a number of entries were read from it, both by the plaintiffs and defendants. It appeared that the plaintiff. T. Walden.

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had become surety with Eakin, in several custom house bonds given for duties on goods imported, and which, when they fell due, were taken up by Eakin, but that the plaintiffs had lent and advanced him money for this purpose ; and it was contended that the money thus lent was not recoverable in this action; but the judge ruled otherwise, provided the jury should find the existence of a partnership. A verdict was taken for the plaintiffs, by consent, for 5,000 dollars, subject to the opinion of the court on a case, and the damages were to be increased or diminished as the court should direct.

Griffin, for the plaintiffs. 1.

There was a general partnership, between the defendants, when the demand of the plaintiffs arose, in 1806. To make Sherburne liable as a partner, it is sufficient to show that he shared in the profits of the joint concern. Whether the profits be more or less, can make no difference. The evidence of the fact of general partnership arises from the articles of partnership, from general reputation, and from entries in the books of account.

The limitation in the articles, of the liability of the parties to the amount of profits, though it may be conformable to the law of France, is of no force here, except between the parties themselves. An American house of trade must be governed by the laws of this country. (Robinson v. Bland, 1 Wm. Bl. Rep. 234. 256. Smith v. Smith, 2 Johns. Rep. 235 . Thompson v. Ketcham, 4 Johns. Rep. 285 . 8 Johns. Rep. 189 .)

2. As regards third persons dealing with a partnership, it makes no difference, as to the responsibility of the partners, whether the partnership is general or limited; or whether the partner who receives the money or property applies it to the partnership account or not. It is enough that the transaction is in the name of the partnership, and that the advance is made on its credit; unless some collusion is shown between the plaintiffs and the partner. One partner may bind the firm, without its consent, by a simple contract, not relating to the partnership, if he deal in the name of the partnership, with a person who has no notice that' he is dealing on his separate account. (Montagu on Part-

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nerships, 23. 8 Vesey, 540. 7 East, 210. 13 East, 175. 1 Campbell N. P. Rep. 185.)

Again ; there was a general existing partnership between the defendant and £« in and prior to 1806, and there is no other evidence of its dissolution than the letters between the parties. These may be sufficient for that purpose, as between them ; but, in regard to third persons, such a private agreement can have no effect. There should be either a personal notice to persons dealing with the firm, or a public notice in the gazette.

Then, as to the proof of the advances made by the plaintiffs to the firm. The account current rendered by them, and produced by the defendants, is sufficient evidence. It contains all the plaintiffs’ claim, and by introducing it as evidence, the defendants, prima facie, have admitted the justness of the charges. They are concluded by it, unless they wholly disprove the items. The plaintiffs, therefore, must recover the balance as stated. (Randle v. Blackburn, 5 Taunt. Rep. 245. Phillips' Law of Ev. 79.)

3. The letters from Eakin to Sherburne were not admissible evidence. By reading the letters from S. to E. the plaintiffs did not sanction or admit the answers of E. to S. nor are they to be concluded by them. This, however, is not a material point, except so far as the defendants may .rely on the correspondence, as evidence that there was no partnership. If, in that view, it should become necessary to examine it, it will appear to be a most extraordinary and mysterious correspondence; intended, in consequence of the difficulties attending a commercial intercourse with Europe, to veil the true situation of the parties.

4. It may be objected, that the declarations of E. were not admissible evidence to charge S. It is not necessary to combat this objection, as it may be thought to impeach the case of Whitney v. Ferris; ( 10 Johns. Rep. 66 .) though Lord Ellenborough, in Evans v. Drummond, (4 Esp. N. P. Rep. 89.) did admit the declarations of C., with whom the plaintiff dealt, to charge D. as his secret partner. Thus much, however, must be conceded, that, having first established the connection in business or partnership between the parties, the declarations of one of them is evidence to bind both.

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5. It will be said, that the money lent E. to take up the custom-house bonds for which T. W., one of the plaintiffs,. had become surety, is not recoverable ; and the case of Turn v. Goodrich and others, ( 2 Johns. Rep. 213 .) will be relied on as an authority in support of this objection. But that case proceeds on the strict technical ground of a payment by a surely of a bond executed by one of the partners and himself. This case is clearly distinguishable. The plaintiffs did not take up the bond, or pay the money, to relieve themselves as sureties. E. himself took up the bond, and the bond was introduced merely to show that he applied the money, lent by the plaintiffs, to the use of the partnership; it being admitted that the goods imported, for the duties on which the bond was given, were for the account of the partnership.

S. Jones, jun., contra.

There was no partnership between E. & S. after the 30th of September, 1806. There had been a limited partnership between them in France, where they resided, which being dissolved, they agreed to establish two distinct and wholly independent houses, one in France, and the other in the United-States, for the sole object of transacting commission business. In regard to every other business, each was at perfect liberty to carry it on as he pleased, for his own individual benefit. They were partners only in cases of consignment from one to the other, in the profits arising from the sales. It is like the case of two persons purchasing goods and selling them on their joint account, where the joint concern or partnership is limited to that particular object. A special, or limited partnership, may exist, and the responsibility of the parties is confined to their contracts in regard to such particular business.^[2] (Lansing v. Gaine & Ten Eyck, 2 Johns. Rep. 300 . Livingston v. Roosevelt, 4 Johns. Rep. 256 . Dubois v. Roosevelt, ib. note. Watson on Partners, 54. 184.) If any doubt exists on this point, it is removed by the conduct of the parties. S. continued to do business in France, in all other respects, on his own separate account. The correspond

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ence between S. E. contains no evidence of a general partnership. They had no motive for concealment, or to wrap their concerns in mystery. One of the letters, December 3d, 1807, is confidential, sent by a friend, and, therefore, not exposed to accident. The mere declarations, or acts, of one person, are no evidence to charge another, or to show a partnership. ( 10 Johns. Rep. 66 .) The court, it is true, in Whitney and another v. Sterling and others, ( 14 Johns. Rep. 215 .) allowed evidence of general reputation, connected with corroborating circumstances, to b,e evidence, prima facie, that B. was a partner of H. S. fy Co. ; but there notice had been given to produce the articles of copartnership, which the defendants refused to do. Where articles of copartnership are, in fact, produced, general reputation can avail nothing.

In Livingston v. Roosevelt, ( 4 Johns. Rep. 278 .) Kent, Ch. J. observed, that “ where the business of a partnership is thus defined, and publicly declared, and the company do not depart from that particular business, nor appear to the world in any other light than the one thus exhibited, one of the partners cannot make a valid partnership engagement on any other than a partnership account. There must be some authority beyond the mere circumstance of partnership to make such a contract binding. Were it otherwise, it would be idle, and worse than idle, to talk of limited partnerships, in any matter or concern whatever.” The plaintiffs have been aware of the necessity of showing, not only that the advance was made to one of the partners, but that the money was applied to the use of the copartnership.

The letter of the 14th of October, 1806, from S. to the plaintiffs, gave them notice that the partnership, before existing between S. E., was dissolved, and referred the plaintiffs to E,, who was coming to New-York to establish himself there. The dissolution of the former partnership, and each party establishing, a distinct house of trade in their separate names, is evidence that the former partnership did not exist or continue. If they intended to be partners, why not continue their former firm ? By the new agreement, all shipments to France, by E., were to be on his own account

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and risk ; and all shipments by S., to the United Slates, on own account and risk. Each was to bear the loss, if any,. on their respective shipments. They were to be jointly concerned in the profits only, if any should arise, from sales. The plaintiffs were well acquainted with the business and transactions of E., who traded in various ways not comprehended in the articles of agreement between him and S. The plaintiffs, then, were bound to show that all their advances to E. were for the special object of the partnership, and were applied to that object.

The special partnership, if any existed, was finally terminated by the letter of S. of the 30th of May, 1808, to E., and received by him the 18th of August following. As the plaintiffs have not given credit to S., as a partner, since the first notice of the dissolution, they can have no claim against him for advances made since he ceased to have any interest in the profits of E.’s business, even without notice of that fact.

But it is said, that the account current of 1807, rendered by the plaintiffs against S. fyE., and produced by S., is conclusive against him; but it was a mere copy of an account rendered to E. Besides, the admission of one partner, after a dissolution of the partnership, cannot hind his co-partner. In Hackley v. Patrick, ( 3 Johns. Rep. 536 .) the court decided that the acknowledgment of the balance of an account by one partner, who was authorized, on the dissolution, to settle the accounts of the partnership, did not bind his copartner. Now, the acknowledgment endorsed on the account, by E., was subsequent to the dissolution.

Again ; it is said that the entries in the waste hook of E. are evidence; but they can amount to no more than his private declarations. That was the private book of E., and contained entries of his business,' génerally, subsequent to, as well as during, his connection with S.

Again ; the moneys charged by the plaintiffs as advanced to E,, to take up the custom house bonds on which they were sureties for E., cannot be recovered against S., admitting him to be a partner. The case of Tom v. Goodrich, ( 2 Johns. Rep. 213 .) is decisive on this point. The bond

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being executed by E. alone, was his private debt, for which S. is not liable.

As to the interest on the account, S., if liable at all for the debt, ought not to pay interest, until after the denaand made of him, in February, 1817.

T. A. Emmet, in reply.

By their agreement, S. and E. were to share the profits on all goods reciprocally shipped for sale; and all on goods consigned, they were to share in the commissions. The dissolution of the former general partnership was merely nominal, and was obviously intended to protect the property of the concern from British capture. The letter of S. to the plaintiffs, in which he announces the dissolution, and refers them to E., made the latter an agent to state the nature and extent of the connexion.

Again ; the advances by S. to E. constituted a partnership concern. S. could control all the profits of the adventures. Partnerships carried on here are not to be governed by the laws of a foreign country, or the peculiar laws of France. The letter of S. of the SOth of May, 1808, in which he refuses to accept bills, refers to an article of their agreement not found in that of September, 180G. The language of the correspondence between S. and E. is not that of persons acting separately and distinctly, and writing to each other ; but is that of one person writing to another, about matters in which they have a common interest and concern.

Reputation is admissible as to partnership; and where the parties live in the same place, it is strong evidence; but reputation connected with other circumstances is sufficient evidence. There does not appear any intention on the part of S. to conceal the fact of his being a partner of E. as it regarded creditors, but merely for the sake of guarding against the effect of British capture. His letter authorized E. to make full disclosures and declarations, as to their connection, to all persons with whom he wished to transact business. In his letter, also, of April, 1808, in which he speaks of the transaction with Bell &/• Co., he says, that in case the debt is paid, E. should be credited his share of the profits.

In Wood and others v. Braddick, (1 Taunt. Rep. 104.)

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the court of C. B. in England, decided, that the admission made by one of two partners, after a dissolution of the co-partnership, as to what took place during the partnership, was competent evidence to charge the other partner. Heath, J., said, that the dissolution operated only as to the future, not as to things past, with respect to which the partnership continues, and always must continue.^[2]

This is, undoubtedly, the true principle, though it is true, that this court, in Hackley v. Patrick, thought otherwise.

The case of Tom v. Goodrich turned on the technical rule of law as to sealed instruments, and as to principal and surety; but the plaintiffs, as partners, were not sureties of E. T. W. signed one bond, and J. W. another.

delivered the opinion of the court. The verdict being taken by consent, subject to the opinion of the court, we must draw such conclusions from the evidence, as we think the jury ought to have drawn. The principal inquiry is, whether the defendants were general partners, in consequence of the agreement between them, of the 30th of September, 1806. Regarding the whole of that instrument, the circumstances of the times, and the conduct of the parties under it, I feel no hesitation in saying they were general partners. It appears, by the recital to the agreement, that the defendants had been partners in a commercial house at Nantz, in France, from May, 1804. That partnership they agreed to dissolve ; and for the purpose of promoting the general as well as individual interest of each party, they further agreed to establish a commercial house in New-York. It is to be observed, that both the defendants were American citizens, and the articles under consideration contemplate that Eakin was to reside at New-York, and Sherburne in France.

The first article of the agreement states, that the principal obj ect of their respective establishments was intended to procure consignments on commission from the United States, and they pledged their honour to use their best endeavours in the attainment of that object.

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By the second article, Sherburne engages to ship, from time to time, such goods as may be deemed profitable for sale in the United States, directed to Eakin, for account of himself, for such American citizens as he may point out.

By the third article, Eakin engages to convert all such amounts, likewise any sum he may be able lo command, arising from association, loan, or credit, into reasonable advances on goods consigned for sale, to the house of Sherburne ; Eakin taking the precaution of insuring.

By the fourth article, all shipments of goods made by order of Eakin, shall be for his account and risk, but one third of the net profits arising from the sales of the goods, after deducting two and a half per cent, commissions, was to be carried to the business credit.

The fifth article, provides that all consignments of goods received from the United States, whether from shipments made directly from Eakin, or from his friends in consequence of his influence and exertions or orders,. Sherburne agrees to account with Eakin for one third of the net commissions arising from such consignments; and it is declared to be understood that this condition should be made reciprocal. The sixth article stipulates, that when a shipment of goods is deemed prudent to be made by Eakin, on his own account, consigned to Sherburne, a mutual exchange is to take place; and the article proceeds to arrange how the net profits and commissions are to be divided. Sherburne, in such case, is to receive one third of the net profits, and Eakin, one third of the net commissions. They also agree, that if losses should arise on such adventures, they are to be deducted from the amount of the profits made in the year; and they agree not to be answerable for the losses on shipments, beyond the profits made in the year. These are all the stipulations material to this inquiry.

It is very manifest, from the whole agreement, that the defendants meant to keep out of sight, the fact, that there was to be a commercial establishment in which both were interested, in France; that all goods going to and from France, were to appear to be owned by Eakin, who wai domiciled here, to avoid the risk of British captures; but in all the adventures, whether from America or France, boils

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of them were to have the stipulated profits and commissions, in a manner promoting the reciprocal interests of each. No principle is better established, than that every person is tobe deemed in partnership, if he is interested in the profits of a trade, and if the advantages which he derives from the trade, are casual and indefinite, depending on the accidents of trade. (2 Wm. Bl. Rep. 947. 998.) To constitute a partnership, a community of profits and loss is essential; the shares must be joint, though it is not necessary they should he equal. (1 H. Bl. 37.)

By the 3d article of the agreement, it was contemplated by both the defendants, that Eakin was to exert his credit in making advances on goods consigned to the house of Sherburne, for sale, and both of them were to participate in the profits and commissions. This puts it beyond all doubt, not only that the defendants were partners, but that Eakin had a right to borrow money, to advance ,the interests of the firm.

It has been contended, that the defendants were limited, not general partners ; and that, therefore, Sherburne was not bound for the advances made to Eakin, as it did not appear that they were made to promote the direct and specified objects of the partnership. All partnerships in one sense, are limited. They have particular branches of trade in view ; none embrace all the varieties of trade. All that is requisite to render a debt contracted by one of the partners binding and obligatory on the others, is that the debt relate to the partnership. The authority delegated by one partner to another, is to act in the course of their particular trade or line of business; and in such transactions, strangers have a right to act on the credit of the partnership fund. It is not necessary that the money lent, or credit given, should appear to have been actually used for the benefit of the partnership ; third persons have no concern with that. This principle is strongly exemplified in the case of Bond v. Gibson and Jephson; (1 Camp. N. P. Rep. 185.;) there one of the partners, with the intention of cheating the other, went to the plaintiff’s shop and purchased a great number of articles which might be used in the partnership business, and instantly converted them to his separate use. It was a fair sale

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in the ordinary course of business. Lord Ellenborough held, that unless the seller is guilty of collusion, a sale to one partner, with whatever view the goods may be bought, and to whatever purposes they may be applied, is a sale to the partnership.

The letters from Sherburne to Eakin by no means tend to disprove the fact of the existence of a partnership. Considering the necessity for caution, lest their correspondence might be intercepted, the letters are not incompatible with a partnership. Indeed, they seem to me to take an interest in the business which Eakin was doing, indicative of a concern in it>; and Eakin's letters convey the same idea; although I do not consider these letters of any material importance, for, in my judgment, the plaintiffs’ case does not require them.

With regard to the stipulation in the articles of agreement, that the losses on shipments should be deducted from the profits of the year, and that the partner not making the shipment, should be no further answerable ; this was a valid agreement as between the partners, but cannot affect any person dealing with the partnership. If the transaction was in the ordinary course °of business, and attached on the partners, they are answerable to the whole extent of their fortunes.

It has been objected, that moneys lent to pay the custom-house bonds, are not chargeable upon the partnership, inasmuch as one of the plaintiffs was a surety in those bonds, for Eakin only. The case of Tom v. Goodrich and others, ( 2 Johns. Rep. 213 .) has been cited and relied on, in support of this objection. That case would have applied with decisive effect, had the custom house bonds been paid by the plaintiffs; but they do not make the bonds the ground of their demands. They were paid by Eakin, with money lent and advanced by the plaintiffs. This money was applied by Eakin, one of the partners, to pay a partnership charge. Had the money been advanced for the same purpose, by any other person, no doubt could have existed, as to the liability of the defendants ; and the plaintiffs did not advance the money to relieve themselves from the bonds,

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or because they had become chargeable, but it was money }en£ jn the course 0f business. The objection is untenable.

It has been strongly insisted, that the plaintiffs did not Pr0^uce sufficient evidence to prove the items of their account. On the 15th of September, 1808, Eakin, by his certificate, endorsed on an account current,i, made out by the plaintiffs, and charged against him aloné, admitted a balance to be due the. plaintiffs, for 5,802 dollars, 54 cents ; which he further certifies to have been contracted since his connection with Sherburne. This balance was admitted, after the dissolution of the partnership, which took place on the 18 th of August, 1808; for, on that day, Eakin received Sherburne’s letter dissolving the connection. According to the decision of this court, in Hackley v. Patrick and another, ( 3 Johns. Rep. 536 .) one partner cannot, after a dissolution, bind his copartner by acknowledging an account, any more than he can give a promissory note to bind him. It seems that the court of Common Pleas, in England, have held otherwise; (1 Taunt. 104.) but I believe there is more safety in the rule of this Court, than in a contrary one.

It appears to me, that the proof of the account is fully made out. The waste book, in the hand writing of Eakin, was proved, and given in evidence. This I take to be an original book of entries made at the time the transactions took place; and this book contained credits for all the plaintiff’s accounts. The existence of the partnership being established, it follows, that an admission of the account, by one of the partners, during the continuance of the partnership, is competent proof. Besides, the case states, that the plaintiff’s account against Eakin was proved, and read in evidence. Now this account is precisely the account against both defendants, and if proved, the proof avails against both.

Again; the defendant, Sherburne, to gain a deduction from the plaintiff’s account, produced the account himself, and by doing so, he made it evidence. He might, indeed, contradict, or disprove it, but not doing so, it was evidence in the cause, to the jury. (5 Taunt. 245.)

The only remaining question is as to the interest. We have uniformly decided, that after an account has been li

p. 425

quidated, it carries interest; and that an account is to be considered liquidated after it has been rendered, if objectians are not made to it. In the present case the account was rendered to one of the defendants on the 15th of September, 1808, and not objected to; indeed, it was admitted. From that period the plaintiffs are entitled to interest.

Judgment for the plaintiffs accordingly.