Brinley v. Kupfer

23 Mass. 179

• Court: Massachusetts Supreme Judicial Court
• Decided: March 25, 1828
• Status: Published

Opinion

Per Curiam.

The principal question put to the jury was, whether the dissolution of the copartnership was by mutual consent. This was made out in favor of the plaintiff, and so each partner was bound to share in the loss, in the proportion settled by the articles of copartnership. So far then the action is supported. But it appeared that there were two outstanding claims, and it was insisted by the defendant, that assumpsit will not lie by one partner against another, while debts against the firm remain unpaid; and for a good reason, that the defendant partner may be called upon to pay the debts. We do not however think that this verdict ought to be set aside. The claim for 7 dollars and 25 cents was for advertising the dissolution. It was first charged to the defendant, and afterwards, at his request, to Brinley & Co. We consider it as a charge to Brinley and his partner, Stimpson. But Dow’s claim for 45 dollars is a partnership debt. Brinley declined paying it, because it was not- certified by Kupfer, and it remains outstanding. However, as the case has been rightly tried, if the plaintiffs will release to the defendant the amount of this debt, (by which they will pay his share of it,) he will be put on the best ground he can ask for, and by the principles of justice the verdict may stand.¹

1 See Williams v. Henshaw, 12 Pick. 378; S. C. 11 Pick. 79; Fanning v. Chadwick, 3 Pick. (2nd ed.) 423, note 1, and 424, note 1; Collyer on Partn. 153, 154, and note 45. Where there is a settlement between partners, and a promise by one to pay to the other a balance struck, an action at law may be maintained, although by accident or otherwise some trifling debts owing by the firm remain unadjusted. Clark v. Dibble, 16 Wendell, 601.