#### Peyton & Others v. Stratton & Others.

April Term, 1851,

Richmond.

(Absent Cabeia, P.)

Partnerships—Dissolution—Transfer of Partnership Debts--Case at Bar.—S is the acting member of the firm oí L, S & Go. The partnership is dissolved by the death of X.; the firm being largely indebted to S for advances for them in their business, and S being indebted to P the commission merchant of the firm and S. S transfers to P the debt due him from the firm in discharge of his debt due to P, and credits the firm with the amount. Help: S under the circumstances of the case was authorized to make the transfer, and the members of the firm were bound for the amount to P.

This was an action of assumpsit, brought in the Circuit court of Buckingham county by Peyton, Deane & Edwards against Peter B. Stratton and three others, surviving partners of the firm of Bancaster, Stratton & xCo. On the trial after a number of exceptions had been taken, in which all the evidence was stated, there was a verdict for the defendants. The plaintiffs thereupon asked for a new trial on the ground that the verdict was contrary to the evidence; but the Court overruled the motion, and the plaintiffs excepted. In this bill of exceptions the Court certified all the evidence stated in the previous bills of exceptions as to the facts proved.

It appears from the evidence that Ban-caster, Stratton & Co. were partners and millers doing business at Curdsville in the county of Buckingham ; and that Peter B. Stratton was the managing partner. The business was commenced in the spring or summer of 1838, and Nathaniel Bancaster one of the partners died on the 19th of March 1841; but the business was continued until the 30th of June of that year.

In the year 1838 Peter B. Stratton commenced business as a merchant at Curds-ville, in his own name; and in September 1839 he formed a partnership with Richard A. Booker, under the name of Stratton & Booker, which was continued until September 1841.

Peter B. Stratton being the acting partner in both concerns, and the books of Bancaster, Stratton & Co. being in fact kept in his storehouse, he purchased the grain manufactured at the mill of Bancaster, Stratton & Co. paying for it sometimes by goods out of his store or the store of Stratton & Booker, and at others by his own money or his own note, or by the proceeds of the flour manufactured. This flour was shipped to the plaintiffs Peyton, Deane & Edwards, commission merchants in Richmond; and Peter B. Stratton drew upon them for the proceeds of it, either in his own name or the name of Bancaster, Stratton & Co., as suited his own convenience.

The books of Bancaster, Stratton & Co. shewed that when Peter B. Stratton purchased grain for them and xpaid for it out of his store or the store of Stratton & Booker, Bancaster, Stratton & Co. were charged with the amount paid for them; and when Stratton drew on Peyton, Deane & Edwards on his own account, Bancaster, Stratton & Co. were credited with the amount so drawn. In the account rendered to this firm by the plaintiffs, there is, under the date of Eebruary 4th, 1840, a charge by the plaintiffs to them, of 4222 dollars 43 cents, being a transfer of that sum from the account of Peter B. Stratton to the account of Bancaster, Stratton & Co. To this charge the other members of the partnership made no objection; and at this time the books of the firm shewed that Bancaster, Stratton & Co. were debtors to Peter B. Stratton to this amount. Again, there is in the account of the plaintiffs with Bancaster, Stratton & Co. under date of July' 15th, 1841, a charge of 10,646 dollars 42 cents in like manner transferred from the account of Peter B. Stratton to the account of Bancaster, Stratton & Co. This sum it was ascertained afterwards, was more than Stratton or Stratton & Booker were in advance to Bancaster, Stratton & Co., and the excess was returned: yet leaving Bancaster, Stratton & Co. debtors to Peyton, Deane & *158Edwards as appeared by the books of the former in the sum of 8252 dollars 26 cents, on the 1st of July 1841. Of this sum there does not seem to have been any doubt but that it was due to Peyton, Deane & Edwards from one or the other of the parties; and the question in the cause was whether Peter B. Stratton was authorized, after the dissolution of the partnership of Lancaster, Stratton & Co. by the death of Nathaniel Lancaster, in March 1841, to substitute them as the debtors of Peyton, Deane & Edwards in the stead of Stratton & Booker, whilst he credited them with Stratton & Booker for the same amount.

The Court having refused a new trial, and rendered a judgment upon the verdiet for the defendants, the *plaintiffs applied to this Court for a supersedeas, which was awarded.

Randolph, Patton and Lyons, for the appellants.

Garland, for the appellees.

ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as it appears from the account taken from the books of the firm of Lancaster, Stratton & Co., that the firm, at the expiration of the partnership, was indebted to the plaintiffs in error in an amount exceeding the sum claimed in this suit, such account furnished by their own hooks would be prima facie evidence of the claim of the plaintiffs in error, and throws upon the defendants in error the burthen of shewing that the claim was not really due.

The Court, without deciding upon the sufficiency of the certificate of the facts proved upon the trial, as set forth in the bill of exceptions to the decision of the court overruling the motion for a new trial, but looking thereto for the purpose of ascertaining to what extent the prima facie evidence furnished by said account is counteracted by the other evidence in the cause, and regarding the same in the most favourable aspect for the defendants in error, it clearly appears from evidence uncontradicted by any thing appearing in the cause, that the firm of Lancaster, Stratton & Co. were indebted to Stratton or Stratton & Booker in an amount exceeding that which was transferred for the account of the latter, and not settled by P. B. Stratton, to the account of the plaintiffs in error. And the effect of such transfer was merely to substitute the plaintiffs in error as the creditors of the defendants in error in the place of Stratton or , Stratton & Booker, without enlarging, or in any other mode affecting, their liability for the debt due by them; they having obtained credit for the amount so transferred with Stratton or Stratton & *Booker. The Court is of opinion, that under the authority of the case of Brown v. Higginbotham, 5 Leigh 533, and the circumstances of this case, the surviving partner, P. B. Stratton, was authorized to make such transfer. It appears he was the acting member of the firm charged with the settlement of the accounts ; that the debt due from the defendants in error to the said Stratton or Stratton & Booker, grew out of purchases of wheat made for their benefit, by Stratton and Stratton & Booker, and paid for by the latter with merchandise purchased by them of or through the plaintiffs in error. It further appears that the plaintiffs in error supposed that Pi B. Stratton, the acting partner of the firm of Lancaster, Stratton & Co., had authority to make such transfers, and that on the 4th Eebruary 1840, which was long before the dissolution of the firm by the death of Lancaster, a transfer for the amount of 4222 dollars 43 cents was actuallj’’ made and entered on the books, of the defendants in error, and never objected to; so that in reality the effect of the transfer merely rendered the defendants in error responsible for a debt contracted for goods and merchandise of which they received the benefit; and the propriety of the transfer was recognized by the firm in one instance before its dissolution by the death of Lancaster; in these particulars making this a stronger case for the exercise of the authority to make such transfer by the surviving partner in settling up the affairs of the firm, than was furnished by the facts in the case of Brown v. Higginbotham.

. It therefore is considered by the Court, that the judgment of the Court overruling a motion for a new trial is erroneous.

Reversed with costs, verdict and judgment set aside, and cause remanded for a new trial.