Wetmore v. Baker — 9 Johns. 307

Majority

p. 307

Wetmore and Cheesebrough against Baker and Swan.

NEW YORK

Oct. 1812.

Headnote

A., B. & «7, agreed" torn», ime°f stages Utica¡ each pardearas to portion of'tiie ¡'umrh^iL^ own horses at his ownexPenTOandl,1¿c» but extra expenses for extra carriages were 7° “Se ^ athf' county of bv at their request, who found a balance due from I>. & $3. to E. £,; C. of 144 dollars, for Moneys received ai JUOuny. It appearing that D. & E. being jointly concerned in running their part of the line, and generally understood to be partners, E. was held to be jointly chargeable for the money receives by 1)., and for his acts; and that an action for money had and received would lie in the mayor'’' court in the city of Mbany, at the suit of B. St C. against D. 8c E. to recover the balance so stated to be due, by the agent employed to adjust the accounts, there being no. such nartnersiim exis«5nr’ between the five persons concerned, as would prevent such, a suit.

IN error, from the mayor*s court of the city of Albany. Baker and Swan brought an action of assumpsit against the plainfifís in error, in the court below. The declaration, contained two counts, one for money had and received to the use of the plainlifib,t0 and the other on an inshmd compidassent. Pie:-., non assumpsit. .It appeared that the plaintiffs and defendants and one Joshua GsIrom, having run a line of stages from Albany to Tilica, there was an unsettled account between them. In January, 1815, a person was requested by Baker and Cheesebrough to make a settlement of the accounts ; and he went lo Palaline, in the county of Mont LOÍtis gomery, for that purpose, and Ostrom way present at fisc ment. It appeared that Ostrom was to receive the money earned by the western part of the line of stages, and the plaintiff; and defendants the money earned by the eastern part; and that, ou cm

p. 308

examination of the accounts and vouchers, it appeared that the plaintiffs had received less than their proportion, and the defendants so much more than their share; and upon a just distribution °f the moneys received, there was a balance of 144 dollars due from the defendants to the plaintiffs. Ostrom consented to the statement of the balance, and that it should be" paid to the plaintiffs ; and it appeared that that sum had been received by the defendants in the city of Albany. The witness testified that Wet-more and Ckeesebrough were jointly concerned in running their part of the line of stages, and it was generally understood that there was a partnership between them. When the adjustment of the accounts was made, he did not hear any express promise by the defendants to pay the balance so found ; but he was requested by Ckeesebrough to adjust the accounts: Wetmore was absent.

It was proved that the plaintiffs were to run one part of this line from Albany to Utica, the defendants another part, and Os irom another part; each party to find his own horses and carriages, at bis own expense, and bear all losses, except extra expense for extra carriages, which were to be borne by qll the parties jointly. It was also proved that after the adjustment of the accounts at Palatine, Ckeesebrough said that he expected to pay the plaintiffs their proportion of all that was received.

The defendants below then produced the articles of agreement between Ostrom, of the one part, and Wetmore and Ckeesebrough and Baker and Swan, of the other pati; by which the parties of the first part agreed with Ostrom to run a line of stages from Albany to Schenectady, and thence to Palatine ; and Ostrom agreed to run a line from Utica, to meet the other at Palatine. The agreement was dated the 17th of September, 1810, and was to be in force for five years. The defendants proved that the line of stages in question was run under that agreement, and that the settlement which had been proved arose out of it. Ckeesebrough did not sign the agreement; and the defendants’ counsel insisted, that the acts and confessions of Ckeesebrough could not bind or prejudice Wetmore, and that all the authority of the person who adjusted the accounts was derived from Ckeesebrough, so that Wetmore could not be bound or concluded by the acts of such an agent; that the agreement being the basis of the settlement, no action would lie for a balance of accounts, unless there was an express promise to pay ; and that, on the second count, the insimul computassent being the foundation of the assumpsit, it should have been made

p. 309

within the jurisdiction of the mayor’s court; that the sealed instrument, being the basis of the action, ought to have been set forth in the plaintiffs’ declaration; and that an action of assumpsit would not lie to recover the balance which might be found due on a settlement of accounts between the parties. The court below charged the jury, that the plaintiffs were entitled to recover, and the jury found a verdict accordingly. The defendants’ counsel tendered a bill of exceptions to the opinion of the court below, on which the writ of error was brought to this court,

Champlin, for the plaintiffs in error.

Lush, contra.

This ivas an action for money had and received, and as the money was received in the city of Albany, there cannot be a doubt but that the mayor’s court had jurisdiction of the cause of action, which was the money so received. Here was, in some respects, a joint concern between the plaintiffs and defendants and Ostrom, but each party was to have his separate portion of the road, and to furnish his own team, at his own risk and expense. The partnership between the two defendants below was sufficiently proved to charge them jointly with the moneys received, and to charge one with the acts of the other; and, as here was a liquidation of accounts, and a settlement, and a balance struck by a common agent of all the parties, and the sum of 144 dollars found to be specially due from the defendants to the plaintiffs below, the law raised an implied assumpsit in them to pay it. There was no partnership existing between all the five persons concerned in running the stage, so as to interfere with this suit. The covenant introduced by the defendants below had nothing to do with this case. It only went to prove that the parties had agreed with, each other to run a stage from Albany to Utica, but with distinct and separate interests and rights. Each party had his distinct share of the road. The judgment below ought, therefore, to be affirmed.

Judgment affirmed.