#### Paine *vs.*Thacher.

An express promise by one partner, out of his share of the income, to pay to another partner an equivalent in money, for the personal attention of the latter to the business of the concern, may be enforced by an action of *assumpsit,*notwithstanding the existence of the partnership, and that the articles of co-partnership are *under seal*and provide for such payment; it is not necessary to bring *covenant*on the articles.

Without a special agreement one partner has no claim either at law or in equity against his co-partner for time and services bestowed in the business of the firm, beyond that bestowed by his partner; and a count in a declaration setting up such claim and alleging a promise to pay, without averring that the services were rendered *at the request*of the defendant, is bad.

Demurrer to declaration. The plaintiff in the first count of his decía*344ration stated that himself and the defendants, and two other persons, viz. E. Daggett and T. L. Carson, on the 1st April, 1837, entered into articles of agreement under their hands and seals, whereby they formed a partnership in the pump business ; and that in and by the articles it was provided that the defendant, not contemplating to bestow any *personal*attention to the business, should periodically pay to the other partners from his share of the income a fair equivalent in money for the services to be rendered by the other partners in conducting the business. The plaintiff then avers, that on 1st April, 1838, the defendant’s share of the business arising from the income received by him, amounted to the sum of $200; that on the day last mentioned, the partners accounted together of and concerning the time bestowed by the plaintiff, and by Daggett and Carson in and about the business of the partnership, and of and concerning the moneys due to them therefor from the defendant; and that upon such accounting the defendant was found in arrear, and indebted to them in the sum of $193.74; and being so found in arrear and indebted he, in consideration of the premises, afterwards, to wit, on, &c. at, &c. undertook and *promised the plaintiff*to pay him the sum of $64.58, part and parcel of the sum of $193.74, when he should be thereunto afterwards requested. The *second count*of [ *451 ] the declaration was substantially like the first. The *fourth count*stated, that on the first day of April, 1838, the said parties were co-partners in the business of manufacturing and vending pumps, and had been so for the period of one year previous to that time; that since the commencement of the partnership, the plaintiff, Daggett and Carson, had each respectively devoted a large portion of time in and about the business of the partnership ; that on the day last mentioned they accounted together *of and concerning the time devoted hy the plaintiff, and by Baggett and Carson, in and about the business of the partnership ;*and upon such accounting, it was found that the plaintiff, Daggett and Carson, had before then devoted the number of 775 days in the business, *over and above the time devoted thereto by the defendant;*and that of such number of days, the *plaintiff*had devoted 261 1-2 days. The plaintiff then avers that in consideration of the premises, the defendant afterwards, to wit, on, &c. at, &c. undertook and *promised the plaintiff*to pay him the sum of $64.'58, when he, the defendant, should be thereto afterwards requested. To these three counts the defendant *demurred.*

*M. T. Reynolds,*for the defendant,

insisted that the remedy of the plaintiff, if any, was in equity; that as on the accounting the defendant was found indebted to the plaintiff, Daggett and Carson, the two latter parties should have joined in the action, there being no consideration for the promise to one alone; that if a suit at law can be maintained, *covenant*and not *assumpsit*was the proper action ; and as to the *fourth count,*he con*345tended that extra time and services bestowed by one of several partners in the business of a firm, furnished no foundation for a claim against the other partners either at law or in equity, unless supported by a special agreement. Hone such is alleged in the fourth count.

*J. Van Buren,*contra.

*By the Court,*

Helson, O. J.

I am of opinion a legal cause of action is set forth in the first and third counts.

The defendant had stipulated in the articles of partnership for the payment of an equivalent for certain services to be ^render- [ *452 ] ed in and about the concern by his co-partners. The item has been adjusted between them, and an express promise made to pay the plaintiff. The compensation was not to depend upon the nett profit or loss in the business, but was to be contributed as a part of the capital to be furnished by the defendant in lieu of *personal*attention. A final settlement of the concern, therefore, was not material to an adjustment of this item. The case seems to fall within the principle of those, where the suit is brought to recover capital advanced by one partner for another, in the course of their business. 13 *East,*7; 19 *Wendell,*429.

It is also settled that assumpsit will lie on an express promise, independently of the covenant in the articles of partnership. 2 *T. R.*483, *and note ; Carey on Part. 61; Collyer on Part.*152,

The fourth count I am inclined to think bad. Ho previous agreement to pay for the personal services of the co-partner, nor even that he had rendered any on request over and above what belonged to him to perform, is averred. The most thac can be said is, that the plaintiff had devoted more time to the common concern than the defendant. A promise founded upon a past consideration may be good, if the past services be laid to have been done at request; but it must be so laid. 1 *Caines,*504; 7 *J. R.*87; 10 *Id.*243. -There is an exception, where.the request is necessarily implied from the moral obligation under which the party is placed; but it has no application here. The general rule is, that one joint partner is not entitled to charge against another a compensation for more valuable services bestowed upon the common concern without a special agreement. 3 *Johns. Ch. R.*434, *and oases.*There must be judgment for the plaintiff on the demurrer to the 1st and 3d counts, and for the defendant on the demurrer to the 4th count; with leave to the parties to amend on the usual terms.