CHAPTER VII. ACTIONS BETWEEN A PARTNER AND ONE OR MORE OF HIS COPARTNERS. A Partner cannot maintain an Action against a Copartner upon a Partnership Claim or a Partnership Liability. Ex parte NOKES. IN CHANCERY, BEFORE LORD ELDON, C., JUNE, 1801. [Reported in 1 Montagu & Ayrton, 47, note (a).] PETITION by the bankrupt to supersede the commission, on the ground that there was not a good petitioning creditor's debt. The petitioning creditor was a partner of the bankrupt; the debt was above £100, but there had been no statement or balance of the accounts. Romilly, for the bankrupt, contended, that as no action could be maintained at law for this debt, it would not support the commission. Mr. Mansfield and Mr. Cooke, contra. LORD ELDON. I do not know of any case, and I am strongly inclined to think when a partnership is subsisting, and there is no liquidation of the accounts, though there is actually a balance of above £100 due to one partner, that he cannot upon such debt support a commission; but had the partnership been determined, and had the solvent partner paid all debts, I should think that he might sustain the commission. There being some dispute as to the fact, it was referred to the Master.1 1 Windham v. Paterson, 1 Stark. 144; Matson v. Barber, 1 Gow, 17. HOLMES v. HIGGINS. IN THE KING'S BENCH, NOVEMBER 20, 1822. [Reported in 1 Barnewall & Cresswell, 74.] IN September, 1820, notices were given of an intended application to Parliament for leave to bring in a bill for making a railway from Womersley to the river Dun, in the county of York, which notices were given by the plaintiff, describing himself as agent for the intended bill. In December, 1820, a subscription was commenced for the purpose of passing the bill and making the railway; and between that time and the 27th of January following, including the latter day, several persons subscribed to the undertaking, and amongst others the plaintiff subscribed for two shares of £50 each, and the defendant for one. On the 27th January a solicitor to the business was appointed, and was directed to adopt such measures as were necessary to obtain an act of Parliament during the ensuing session, for the above purpose; and on the same day the plaintiff was appointed agent to the company of subscribers, and assistant to the solicitor. These appointments were made at a meeting of the subscribers on the 27th January, at which the defendant acted as chairman, as he did at several other meetings, both before and after. A bill was brought into Parliament the following session, and met with considerable opposition, and was ultimately withdrawn. The money sought to be recovered in the action was for business done and money paid by the plaintiff, as agent to the subscribera to the said undertaking. This cause had been referred to a barrister, who by his award found that the defendant was indebted to the plaintiff in the sum of £324 15s., but delivered to the parties with his award the following certificate: "As it is my wish that the defendant should not be precluded by my award from taking the opinion of the Court of King's Bench, if he shall think proper to do so, upon the objection submitted to me by his counsel, to the right of the plaintiff to maintain the action against the defendant, I certify that it was proved before me, that the plaintiff and the defendant were subscribers to and shareholders in the undertaking, for the benefit of which the work and labor was performed and the expenses incurred by the plaintiff, which formed his demand in the action." F. Pollock, having in last term obtained a rule nisi for setting aside this award, Brougham now showed cause. Here the parties were not partners or shareholders until a bill was obtained. The action is brought not for work done in the course of the partnership, but previously to the commencement of it, and therefore the action is clearly maintainable. ABBOTT, C. J. This is the case of a number of persons jointly associated together for a common purpose. The plaintiff and defendant were both members of the association. This action is brought against the defendant, who acted as chairman at the meeting, when the work done was probably ordered; and he might have pleaded that he undertook jointly with the other subscribers. The members of the association were therefore partners. Now it is perfectly clear that one partner cannot maintain an action against his copartners for work and labor performed, or money expended on account of the partnership. I am of opinion, therefore, that the plaintiff cannot support this action either against the defendant, who was chairman of the meeting, or against the body of subscribers at large. The rule for setting aside the award must therefore be made absolute. Rule absolute.1 1 That a partner, whose claim is in reality against the firm, cannot recover any part of his claim by an action against one or more of his copartners is illustrated by the following authorities : Claims for Work and Labor performed by the Plaintiff for the Firm. Milburn v. Codd, 7 B. & C. 419; Lucas v. Beach, 1 M. & G. 417; Caldicott v. Griffiths, 8 Ex. 898; Causten v. Burke, 2 Har. & G. 295; Warren v. Wheelock, 21 Vt. 323. Claims for Goods sold by the Plaintiff to the Firm. - Marks v. Stein, 11 La. An. 509; Course v. Prince, 1 Mill C. R. 416; Remington v. Allen, 109 Mass. 47. Claims for Money lent by the Plaintiff to the Firm. Perring v. Hone, 4 Bing. 28; Colley v. Smith, 2 M. & Rob. 96; Mickle v. Peet, 43 Conn. 65; Course v. Prince, 1 Mill C. R. 416; Crottes v. Frigerio, 18 La. An. 283; Springer v. Cabell, 10 Mo. 640; Sieghortner v. Weissenborn, 20 N. J. Eq. 172. Claims for Money paid for the Firm. Robson v. Curtis, 1 Stark. 78; Goddard v. Hodges, 1 Cr. & M. 33; Brown v. Tapscott, 6 M. & W. 119; De Jarnette v. McQueen, 31 Ala. 230; Ross v. Cornell, 45 Cal. 133; Camblat v. Tupery, 2 La. An. 10; Hennegin v. Wilcoxon, 13 La. An. 576; Myrick v. Dame, 9 Cush. 248; White v. Harlow, 5 Gray, 463; Wright v. Jacobs, 61 Mo. 19; Harris v. Harris, 39 N. H. 45; Ives v. Miller, 19 Barb. 196; Torrey v. Twombly, 57 How. Pr. 149; Leidy v. Messinger, 71 Pa. 177; Fessler v. Hickernell, 82 Pa. 150; Warren v. Wheelock, 21 Vt. 323; Sprout v. Crowley, 30 Wis. 187; Tomlinson v. Nelson, 49 Wis. 679. But see Wheeler v. Arnold, 30 Mich. 304; Finlay v. Stewart, 56 Pa. 183; Meason ♥. Kaine, 63 Pa. 335. Claims for Rent of Premises occupied by the Firm. - Pio Pico v. Cuyas, 47 Cal. 174, 180; Johnson v. Wilson, 54 Ill. 419; Estes v. Whipple, 12 Vt. 373. Similarly, a partner cannot maintain an action against his copartner where the lia bility of the latter is in reality an obligation to the firm; e.g., Liability for Money had and received by the Defendant to the Use of the Firm. Smith v. Barrow, 2 T. R. 476; Fromont v. Coupland, 2 Bing. 170; Bovill v. Hammond, supra, p. 33; Russell v. Byron, 2 Cal. 86; Stanton v. Buckner, 24 La. An. 391; Pray v. Mitchell, 60 Me. 430 (semble) (conf. Chase v. Garvin, 19 Me. 211; Holyoke v. Mayo, 50 Me. 385); Riarl v. Wilhelm, 3 Gill, 356; Towle v. Meserve, 39 N. H. 9; Young v. Brick, 2 Pennington, 663; Graham v. Holt, 3 Ired. 300. Conf. Lewis v. Edwards, 7 M. & W. 300; Thomas v. Thomas, 5 Ex. 28; Lyon a Haynes, 5 M. & G. 504; Wright v. Cobleigh, 21 N. H. 339. HELME v. SMITH. IN THE COMMON PLEAS, JUNE 11, 1831, [Reported in 7 Bingham, 709.] THIS was an action by the plaintiff, as part owner and managing owner of the ship "Brailsford," against the defendant, another part owner of the same ship, for his portion of the balance due to the plaintiff for the outfit of the ship for several voyages. The cause having been referred to arbitration, the arbitrator found specially as follows: That the plaintiff was part owner of the ship "Brailsford," and acted as ship's husband thereof during the several voyages in respect of which the claim in this action was made; that the defendant was also owner of one-fourth of the said ship, and interested to the extent of one-fourth in all the said voyages; and that the dealing between the plaintiff and defendant, in respect of which this action was brought, was upon the footing of the defendant being owner of one-fourth, and interested as aforesaid. He then awarded and adjudged that the said plaintiff do recover against the defendant in the action the sum of £462 8s. 6d., being the balance due at the time of the commencement of the suit from the defendant, as such owner of one-fourth part of the ship "Brailsford" to the plaintiff as such part owner thereof, for the share of the defendant of the expenses incurred and paid by the plaintiff as managing owner or ship's husband, as aforesaid, for the outfit of the said ship for four several voyages, being the voyages aforesaid, while the defendant was such part owner and interested as aforesaid. No account having been stated or settled between the parties, no express contract to account having been proved before the arbitrator, but all the voyages having been concluded, and the ship sold, as thereafter mentioned, before this action was brought, if the court should be of opinion that an action was not maintainable by one part owner against another for the cause, and under the circumstances aforesaid, then he awarded that the verdict for the plaintiff should be set aside, and a nonsuit entered in lieu thereof.1 Wilde, Serjt., having obtained a rule nisi to enter up judgment for the plaintiff for £462 8s. 6d., pursuant to the award, Jones, Serjt., showed cause. Whether the plaintiff was a partner in the ship, or in the particular adventure of the four voyages, Bovill v. Hammond, this action does not lie, unless there has been a balance 1 A portion of the case not relating to the law of partnership has been omitted. E struck, and a promise to pay the amount. The plaintiff's remedy is in equity. A part owner is a partner; at all events, he may be so; and the dealings between these part owners the sale of the ship on their joint account, and the allowance of the proceeds of the sale against the expense of the adventure-show that they shared in profit and loss, which is the test of a partnership. But, according to Ex parte Christie1 and Strelly v. Winson,2 a part owner is generally deemed a partner. In Holderness v. Shackels, it was held that part owners of a whaling-ship had a lien on each other's share of the proceeds of the adventure, for the contribution of each towards the disbursements of the ship, but it was not decided that one could sue the other for his share of such disbursements. 3 Wilde was requested by the court to confine himself to the first point. A ship's husband is entitled to recover for the expenses of outfit, whether he be part owner or not. Those expenses are a separate undertaking, and independent of the profits of the adventure in which the ship is employed. As if one of four owners of a house were to paint or repair it, he might clearly sue the others for their share of the expense. Ex parte Christie has no application to the question; and in Ex parte Young it was held that part owners of a ship are tenants in common, and not joint tenants. TINDAL, C. J. On looking at this award, the question arises, whether an action will lie by one part owner of a ship against another for his share of the expenses of outfit. If, indeed, the plaintiff and defendant were partners, there is an end of the question; but part owners of a ship are not necessarily partners. If the parties had laid out money on a speculation in goods, the proceeds to be divided on the ship's return, they would have been partners in every sense; but there is nothing here to show that they were more than part owners, and the question is, whether, if one lays out money to enable the ship to proceed, he may not sue each of the owners for his share of the expense. There is nothing to show that the plaintiff's claim was to depend on the profits of the voyage, or that he was to be deprived of remuneration if the voyage turned out to be without profit. The outfit was a portion of the capital which each was to advance, and if the plaintiff had lent either of the part owners the capital he was to contribute, that would clearly have formed the ground of a separate claim. It might have been otherwise, if, by the course of trade, it were the custom for a ship's husband to look to the returns of the ship for the payment of his bill; but no such custom is stated on the award, nor anything to show that the plaintiff and defendant were partners. 1 10 Ves. 105. 8 B. & C. 612. 21 Vern. 297. |