Nall v. McIntyre

31 Ala. 532

Opinion

STONE, J.

The agreed facts in this case raise two legal questions: 1st, can a single member of a partnership, without rhe consent of his co-partner, apply a partnership demand, which on its face shows that it belongs to the firm, of which he is a member, in payment of a debt which he and a third person owe, and for which the firm is not liable; and, 2d, if such application of the partnership effects be made, does this estop the' partners from suing as partners for the recovory of such demand. The following authorities answer both of these questions in the negative; Pierce v. Pass, 1 Por. 232; Cunningham v. Carpenter, 10 Ala. 109; Burwell v. Springfield, 15 Ala. 273; White v. Toles, 7 Ala. 567; Gram & Stewart v. Caldwell, 5 Cowen, 489; Evernghein v. Ensworth, 7 Wend. 326; Rogers v. Batchelor, 12 Peters, 221; Story on Partnership, §§132-3, and notes; Coll. on Partnership, (by Perkins,) §§ 483-4.

The case of Cochran & Instill v. Cunningham, rests on an entirely different principle. The material point consid ered in that case, is not necessarily in conflict with the principles aboved asserted. Estill had, by his conduct and agreement, induced Cunningham to part with his goods, in the purchase of the judgment on Thomas; and he thereby estopped himself from disputing Cunningham’s right to the judgment. The authorities cited in support of that opinion are also reconcilable with our opinion in this case. — Cochran v. Cunninghim, 16 Ala. 448; Richmond v. Heapy, 1 Stark. 202; Riggs v. Lawrence, 3 T. R. 453; Jacaud v. French, 12 East, 317; Coll. on Part. (by Perkins,) § 468.

The judgment of the circuit court, being in conflict with the views above expressed, is here reversed, and the cause remanded.