Fowle v. Torrey

131 Mass. 289, 1881 Mass. LEXIS 234

• Court: Massachusetts Supreme Judicial Court
• Decided: June 28, 1881
• Status: Published

Opinion

Endicott, J.

The bill prays, among other things, that the defendant may be ordered to state a full and correct account of the money received by him from the plaintiff, either alone or as a member of the firm of Fowle, Torrey & Company. We are of opinion that George E. Fowle is a necessary party to the bill. The notes which the plaintiff seeks to enforce against the defendant were the notes of the firm of Fowle, Torrey & Company. It has been decided by this court, that a partner who has received an assignment of all the partnership property, and executed a bond to his retiring partner to assume and pay the partnership debts, does not become liable to pay a debt due from the firm to a creditor, without evidence of an express or implied assent by him to pay the same to the creditor as his private debt. Wild v. Dean, 3 Allen, 579, and cases cited.

There is no allegation in this bill that the defendant agreed to assume and pay these notes to the plaintiff as a private debt. If he made such a promise, in a manner binding upon him, it would seem that the plaintiff would have a complete remedy at law. But the only point we decide in this case is, that the bill cannot be maintained without making Fowle a party. Upon the other questions argued at the bar, and upon the question whether it can be maintained in its present form without further amendment, we express no opinion. Demurrer sustained.