M'Kee & M'Elhenney v. Stroup

24 S.C.L. 291

• Court: Court of Appeals of South Carolina
• Decided: May 15, 1839
• Status: Published

Opinion

Curia, per Evans, J.

There is no doubt that a debt due by one partner, cannot be set off against a partnership demand, and I apprehend that a mere promise of one partner to accept his own debt as a payment, or a discount, does not bind the other partners. — ■ But it never has been questioned that one partner, during the existence of the partnership, may receive payment from a debtor, in flour, bacon, or any thing else, and the circumstance that such articles were applied to his own use, cannot vary the case. On the trial of this case, M’Elhenney was sworn as a witness to prove the plaintiffs’ demand. On his cross examination, he said there was an agreement that the flour was to be credited on the account.— When the bacon was afterwards delivered, there was no express contract that it was to be received in payment, but his understanding was, it was to be paid for in the same way as the flour, and he intended it to go in payment of the account. I had no doubt then, nor have I any now, that when the bacon was delivered, it was understood by both parties that it was in payment of the account. It was on the ground of payment made during the existence of the partnership,- and not on the ground of discount, that I decreed for the defendant.

My brethren concur in that opinion — and the motion is refused.

O’Neall, Earee and Butler, Justices, concurred.