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VAN NESS v. FORREST.

February 8, 1814

VAN NESS
v.
FORREST.



Absent. WASHINGTON, J.

ERROR to the Circuit Court for the district of Columbia.

The case as stated by MARSHALL, Ch. J. in delivering the opinion of the Court was as follows:The Defendant in error, who was president of a commercial company, consisting of four or five hundred members, sold certain merchandize, the property of the company, to Jehiel Crossfield, and took his note payable in twenty days to Joseph Forrest, president of the commercial company, for the purchase money. Default having been made in payment, Joseph Forrest instituted a suit against Jehiel Crossfield and John P. Van Ness, who was a dormant partner of Crossfield, and also a partner of the commercial company.

The declaration contains several counts. The first is on the promissory note, which is charged as the note of Crossfield and Van Ness, trading under the firm of Jehiel Crossfield. The second and third, for goods, wares and merchandize sold and delivered, the fourth for money had and received by the Defendants, to the use of the Plaintiff, and the fifth on an insimul computassit.

The Defendant, Van Ness, pleads the general issue, on which plea issue is joined.

He also pleads in bar several special pleas, amounting in substance to this, that the several assumpsits in the declaration mentioned, were made for goods, wares, and merchandize belonging to the commercial company, consisting of many partners, and of which both the Plaintiff and himself were members.

The third plea alleges, that the Plaintiff did agree to accept and did accept the separate promissory note of the said Crossfield, in payment of all and singular the debt and debts, promises and assumptions in the Plaintiffs said declaration above supposed; in pursuance and execution of which agreement aforesaid, the said Defendant, Jehiel Crossfield, made the said promissory note in the Plaintiffs said declaration mentioned and delivered the same to the said Plaintiff, on the day of the date of the said note at the county aforesaid, and the Plaintiff then and there accepted the same as payment, in pursuance of the aforesaid agreement.

To these several special pleas, the Plaintiff in the Court below demurred specially, and the Defendant joined in demurrer.

On argument, the demurrers except to the third plea, were overruled, and the pleas sustained as to the 2d, 3d and 4th counts, but the demurrers were sustained as to the 1st and 5th counts of the declaration. The demurrer was also sustained as to the 3d plea, which was adjudged bad as to all the counts.

On the trial of the issues, Van Ness objected to the evidence offered by the Plaintiff below, to support the first count, and his objection being overruled, excepted to the opinion of the Court. This exception brings on the whole question made by the pleas on the point, that the goods for which the note was given, were partnership goods belonging to a company of which both the Plaintiff and Defendant were members.

The jury found a verdict for the Plaintiff below, on which judgment was rendered, and the cause is brought into this Court by writ of error.

JONES, for the Plaintiff in error, contended,

1st, That this action is not sustainable, it being brought by one partner against another. And 2d, That the separate note of Crossfield was a discharge of the original debt due from Crossfield and VanNess.

1. An action does not lie by one partner against another, unless for a balance stated and acknowledged upon settlement of the partnership accounts.

The suit was as much for the use of Van Ness, as of any other of the stockholders. The Plaintiff was only a conventional president. The stockholders must all join in the action, and then ...


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