R. Patterson v. W. Choate

7 Wend. 441

• Court: New York Supreme Court
• Decided: October 15, 1831
• Status: Published

Opinion

By the Court,

Sutherland, J.

The original indebtedness of the firm of Choate & Patterson was satisfactorily established by the testimony of George W. Patterson. The fact of a balance due to the plaintiff was shewn by entries made in the defendant’s own books of account before their dissolution, in the hand writing of one of the defendants. It was expressly held in Walden & Sherbune v. Eakin, 15 Johns. R. 409, that entries made by one of the partners, during the partnership, in their books of account, are admissible evidence against both. No objection was made at the trial to the competency of this evidence; it does not appear even to have been suggested that the books themselves should have been produced.

It has been repeatedly held in this court, that though one partner after the dissolution cannot bind the other by any new contract, yet his acknowledgment of a previous debt due from the partnership, will bind the other partner, so far as to prevent him from availing himself of the statute of limitations. It is admissible to repel the presumption of payment of a debt which is shewn to have once existed against the firm, although not competent to create a new debt. In Smith v. Ludlow, 6 Johns. R. 267, and in various other cases in this court, this principle has been recognized.

The acknowledgment was sufficient to raise a new promise. The witness first stated it as follows: that Patterson said “ that the balance, as exhibited by their books of account, was due to the plaintiff at the time of the dissolution of the copartnership, and had not been paid to his knowledge.” Upon being interrogated by the plaintiff’s counsel, he said the expression used by Patterson was “ that the balance was due at the time of the dissolution, and still is due” as witness thought. It might have been “ that it was .then due, and had ° , . _ . . , never been paid; either version of it amounts to a clear and explicit admission of a substituting indebtedness.

Interest was properly allowed. The account was liquidated, and the balance due exhibited on the books of the defendant. The evidence shews that the plaintiff, with one of the defendants, examined the account as stated, and his assent to its accuracy is fairly to be implied.

Motion for new trial denied.