Paine v. Thacher

Headnote

An express promise by one partner, out of his share of the income, to pay to another partner an equivalent in money, for the personal attention of the latter to the business of the concern, may be enforced by an action of assumpsit, notwithstanding the existence of the partnership, and that the articles of co-partnership are under seal and provide for such payment; it is not necessary to bring covenant on the articles.

Without a special agreement one partner has no claim either at law or in equity against his co-partner for time and services bestowed in the business of the firm, beyond that bestowed by his partner; and a count in a declaration setting up such claim and alleging a promise to pay, without averring that the services were rendered at the request of the defendant, is bad.

Demurrer to declaration. The plaintiff in the first count of his decía

ration stated that himself and the defendants, and two other persons, viz. E. Daggett and T. L. Carson, on the 1st April, 1837, entered into articles of agreement under their hands and seals, whereby they formed a partnership in the pump business ; and that in and by the articles it was provided that the defendant, not contemplating to bestow any personal attention to the business, should periodically pay to the other partners from his share of the income a fair equivalent in money for the services to be rendered by the other partners in conducting the business. The plaintiff then avers, that on 1st April, 1838, the defendant’s share of the business arising from the income received by him, amounted to the sum of $200; that on the day last mentioned, the partners accounted together of and concerning the time bestowed by the plaintiff, and by Daggett and Carson in and about the business of the partnership, and of and concerning the moneys due to them therefor from the defendant; and that upon such accounting the defendant was found in arrear, and indebted to them in the sum of $193.74; and being so found in arrear and indebted he, in consideration of the premises, afterwards, to wit, on, &c. at, &c. undertook and promised the plaintiff to pay him the sum of $64.58, part and parcel of the sum of $193.74, when he should be thereunto afterwards requested. The second count of [ *451 ] the declaration was substantially like the first. The fourth count stated, that on the first day of April, 1838, the said parties were co-partners in the business of manufacturing and vending pumps, and had been so for the period of one year previous to that time; that since the commencement of the partnership, the plaintiff, Daggett and Carson, had each respectively devoted a large portion of time in and about the business of the partnership ; that on the day last mentioned they accounted together of and concerning the time devoted hy the plaintiff, and by Baggett and Carson, in and about the business of the partnership ; and upon such accounting, it was found that the plaintiff, Daggett and Carson, had before then devoted the number of 775 days in the business, over and above the time devoted thereto by the defendant; and that of such number of days, the plaintiff had devoted 261 1-2 days. The plaintiff then avers that in consideration of the premises, the defendant afterwards, to wit, on, &c. at, &c. undertook and promised the plaintiff to pay him the sum of $64.'58, when he, the defendant, should be thereto afterwards requested. To these three counts the defendant demurred.

insisted that the remedy of the plaintiff, if any, was in equity; that as on the accounting the defendant was found indebted to the plaintiff, Daggett and Carson, the two latter parties should have joined in the action, there being no consideration for the promise to one alone; that if a suit at law can be maintained, covenant and not assumpsit was the proper action ; and as to the fourth count, he con

tended that extra time and services bestowed by one of several partners in the business of a firm, furnished no foundation for a claim against the other partners either at law or in equity, unless supported by a special agreement. Hone such is alleged in the fourth count.