Gordon v. Albert

46 N.E. 423, 168 Mass. 150, 1897 Mass. LEXIS 182

• Court: Massachusetts Supreme Judicial Court
• Decided: March 6, 1897
• Status: Published

Opinion

Holmes, J.

The only question, before us is with regard to the effect of a release of a debt due to his firm by one partner after the debtor has notice of dissolution, and has been notified also that any settlement must be made with both partners' together. The question hardly can be considered open under our decisions. Whatever the want of authority of one partner to represent the other under such circumstances, if he has an interest he cannot be hindered from releasing his own claim, as might be the case if he had sold out to his former associate and were a mere trustee. His right to release his own interest is absolute, whatever his motive. A release disables him from maintaining an action, and the other cannot sue without him. Homer v. Wood, 11 Cush. 62. Eastman v. Wright, 6 Pick. 316, 323. Earley v. Lovell, 103 Mass. 387. Grover v. Smith, 165 Mass. 132. See Phillips v. Clagett, 11 M. & W. 84, 91, 92, 94; Barker v. Richardson, 1 Yo. & Jerv. 362, 366.

It is not necessary to consider whether, if the defendant made the settlement with fraudulent intent, the defrauded plaintiff could have relief in equity. He certainly could have none at law.

Exceptions overruled.