Ladue v. Hart

4 Wend. 583

Opinion

By the Court,

Savage, Ch. J.

The plaintiffs were partners in the earnings of the vessel, and- of course of the freight in question. It is well settled that one partner" cannot pay his individual debt with the partnership property. (16 Johns. R. 34.) Nor" can he discharge a debt due" the firm by setting off a debt due from himself, (5 Cowen, 489.) It- fol lows that a demand against M’Connelly alone, is not a good set off to a joint demand of the two plaintiffs for freight.

One partner, however, may receive payment of a debt due the firm ; and it is contended that the transaction in this case amounted to a payment in advance for the freight subsequently earned. It is not necessary to inquire whether such a payment in advance to one partner would be obligatory upon the other. My impression is, that it would not, where the payment was made previous to the partnership being formed ; the payment to M’Connelly could only be obligatory upon himself, for at that time it was made he had no partner, but “ was about to take a vessel.” The circumstances, however, did not amount to a payment in advance, it was a purchase by the defendant of M’Connélly’s note. The question then simply is, whether a note for an individual debt of one of a firm can be set set off against a partnership demand. It has been repeatedly decided by this court that such a set off cannot be allowed.

The judge therefore erred, and a new trial must be granted ; costs to abide the event.