Norcross v. Benton

38 Pa. 217, 1861 Pa. LEXIS 92

• Court: Supreme Court of Pennsylvania
• Decided: February 11, 1861
• Status: Published

Opinion

The opinion of the court was delivered,

by Lowrie, C. J.

— Norcross & Sheets are the garnishees in a foreign attachment suit against Simmons & McClees, the debtors of Benton & Brother, and being now called on to answer to Benton & Brother for any debt they may owe to Simmons &' McClees, they deny that they owe them anything. This is the general question. They do owe them, as the jury have found, unless they have a right to charge Simmons & McClees with a draft of Simmons in favour of McClees, paid by them, or to charge Simmons & McClees with a debt due to them by Simmons. Of course they can do neither of these things without some evidence tending to show that the apparently individual contracts of Simmons are really the contracts of Simmons & McClees, or that McClees has assented to such a charge. The forms of the proceeding are all against it, and as a matter of fact, Simmons was actually carrying on a business by himself. The draft shows a debt of Simmons to McClees, paid by Norcross & Sheets; that it would not be paid at all if it be charged to Simmons & McClees. To show that Simmons was the entire partner, makes out nothing against McClees in a transaction where he professedly acted for himself alone, and not for his firm. We see no sort of evidence, rejected or admitted, that could justify a finding that the draft of Simmons or the balance due by him was properly chargeable to Simmons & McClees, and therefore we discover no error in the trial.

Judgment affirmed.