Clark v. Miller

4 Wend. 628

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Sutherland, J.

The motion for a non-suit was properly refused upon the trial. It was founded upon the allegation that House was a partner with the plaintiffs in the cattle in question, and entitled to a share of the pro-A A ceeds of the sale, and ought therefore to have joined in the action.

If House was a partner, (which might admit of some question,) he was a dormant partner; his name did not appear in the transactions relative to the cattle, and he was not held forth or known to the world as a partner, or as in any manner interested in the business of the plaintiffs. He was not a party to the contract with the defendant; it was made exclusively with Clark and Bushnell. Though a dormant partner may be sued for the debts of a firm, yet his name need not and ought not to be used when they are plaintiffs-This was expressly ruled by Lord Kenyon in Leverick & Pollard v. Shaftoe, (2 Esp. R. 468;) and the same learned judge, in Ross and others v. Day, (2 Esp. R. 469, note,) allowed a set off of an individual demand against a partnership debt, where it appeared that the business had been carried on in the name of one of the partners only, with whom the defendant dealt, and to whom he might have given credit on the ground that he could avail himself of it by way of off set. (7 T. R. 361, note.) The same points were also ruled in Lloyd v. Archbowle and Mawman v. Gillett, (2 Taunt. 324, 5. 1 Chitty’s plead. 9. 3 Cowen, 84.) House was not objected to as an incompetent witness.

The evidence was clearly sufficient to support the count for money had and received. The fact that the defendants had paid to the plaintiffs $260 on account was prima facie evidence that they had sold the cattle for cash and received this money; and that presumption is corroborated by other circumstances in the case.

As to the amount for which the cattle were sold, it was a proper subject for the jury to determine. The evidence as to the value of the cattle was somewhat contradictory ; but it is to be borne in mind that it was in the defendants’ power to remove all doubt on the subject, as they and they alone knew to whom they were sold and for what price. Under such circumstances, it was the duty of the jury to allow the highest sum which, according to the 'evidence in the case they could probably have been sold for.

Motion for a new trial denied.