Allen v. Cheever

61 N.H. 32

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1881
• Status: Published

Opinion

Blodchütt, J.

Although it is a general rule that a partner cannot affix the seals of his copartners without their express authority, yet there is a well recognized exception to its operation in the ease of a release to a joint debtor of a partnership claim, which may be executed by one partner without special authority, and will be binding upon his firm. Morse v. Bellows, 7 N. H. 549, 567; Bar. Bart. (3d ed.) 198, and authorities cited. Shepard, therefore, had authority to bind the plaintiffs by the mutual agreement of compromise entered into by the Boston creditors with the defendants, the effect of which was to annul the original contract between these parties arising from the purchase and delivery of the goods, and to substitute another in its stead, by which the plaintiffs became bound, upon the receipt of 20 per centum of their claim, to give a release in full. And the defendants having, by the tender, complied with the terms of the new contract, and the other creditors having accepted the composition and released their claims, the plaintiffs cannot now be permitted to recover their whole debt, not only because it would be a fraud upon such other creditors, but also because their original debt was extinguished by the compromise embodied in the agreement and its subsequent performance by the defendants. Browne v. Stackpole, 9 N. H. 478, 481, 482; Perkins v. Lockwood, 100 Mass. 250; Chit. Cont. (6th Am. ed.) 775; Miller v. Mackenzie, 43 Md. 404.

Where a tender of money is relied on, the money must be brought into court. Frost v. Flanders, 37 N. H. 549, 552. When this is done, the defendants will be entitled to judgment. <

Case discharged.

Stanley, J., did not sit: the others concurred.