#### Christopher Barker and Another *versus*Martin Blake.

A transfer in a merchant’s leger of the balance of his account against a firm to the private account of one of the copartners, without the privity of any of them, was holden not to conclude tire merchant, and his recharging the firm to be good and sufficient to hold them.

This was *assumpsit*brought against the defendant, as surviving partner of the company of *Blalce f Dix,*for a balance of account, moneys advanced, &c.; and it was tried upon the general issue ai *23the last November term in this county, before *Parker,*J., from whose report of the trial the following facts appear: —

*Elijah Dix, Martin Blake,*and *Alexander Dix,*were partners in business, under the firm of *Blake &/• Dix,*for some years preceding the month of July, 1806. About the 6th day of said July, these partners agreed to settle their partnership concerns, and not to commence any new business; and that the partnership name should be continued only for the purpose of finishing the affairs of the company. This arrangement among the partners was not made public by advertisement in newspapers or otherwise. The stock, consisting of merchandise and debts, was made over to *Elijah Dix,*who assigned them to *Alexander Dix,*and this latter undertook to apply the proceeds thereof to the discharge of the debts due from the partnership.

*On the 5th of August, 1807, negotiations began be- [ * 17 ] tween *A. Dix*and *Barker Bridge,*the present plaintiffs, who were auctioneers and commission merchants; in the course of which, and during the month of August and a part of September, large sums of money were advanced to *A. Dix,*on deposits of goods, which were taken from the store in which the business of *Blake Dix*had been transacted.

On the 10th of September, 1807, the plaintiffs had in their hands sufficient property, including the goods shipped by *Inghams*herein after mentioned, (with a right to dispose of the same,) to secure them against all advances made to *A. Dix.*On the same day, an invoice of *English*goods, shipped by *Inghams,*merchants in *England,*to the sole account of *A. Dix,*and ordered by him separately for his own use, was transferred by him to the plaintiffs, the bill of lading being endorsed to them, and the goods taken into their possession, and part of them afterwards sold by them.

On the 11th of September, the balance on the books of the plaintiffs against *Blake 8f Dix,*amounting to 15,278 dollars 30 cents, was transferred to a new account opened against *A. Dix*alone, and credit was given for the same amount to *Blake &/• Dix.*It did not appear in evidence whether this was done at the instance or with the knowledge either of *A. Dix,*or of *Blake,*or of *E. Dix.*

On the 18th of September, 1807, the dissolution of the said copartnership was publicly advertised in the *Boston*papers by all the partners. Afterwards one of the house of *Inghams*arrived here, and sought payment for the goods, which had been shipped to *A. Dix,*the payment whereof had been guarantied by the said *E. Dix;*part of which goods had been sold, the remainder being in the hands of the plaintiffs, to whom they had been pledged by *A. Dix.*Upon the importunity, however, of said *Dix,*the plaintiffs consented *24to deliver the goods unsold to *Inghams,*taking other security from *A.*Disc.alone, among which were three promissory notes of *A. Dix,*amounting to 6000 dollars, which were received and [ * 18 ] credited at a discount of 12 per cent., * being collaterally secured by three several mortgages, which afterwards proved to be of no value. This transaction was without the privity of *E. Dix*or of the defendant, *Blake.*

It appeared, from the books of the plaintiffs, which were produced and used at the trial, that, in April, 1808, the plaintiffs recharged to said *Blake &/■ Dix*the balance standing against said *A. Dix,*and at the same time credited to them the balance standing in favor of said *A. Dix,*leaving a balance of 7889 dollars 69 cents, which, with interest thereon, and some other small charges, is the sum demanded by the plaintiffs in this action.

In the said account with *A. Dix*the plaintiffs had given him credit for 5280 dollars, on account of the said three notes and mortgages; and afterwards, on the failure of security from the mortgages, they recharged that sum to *Blake Dix*in a subsequent account, and in the same account gave credit to said *Blake 8f Dix*for the sum of 5635 dollars 68 cents, which they had subsequently received from the effects of *A. Dix,*deposited with them when they returned said Inghams’ goods.

There was no evidence that, in the first instance, the balance was charged to said *A. Dix,*except what arose from the manner of his dealing with the plaintiffs on the 11th of September and afterwards; nor was there any evidence that *E. Dix*and the defendant consented to or knew of the said charge, or the recharge to them in April, 1808, or that the said *A. Dix*was privy thereto.

All the moneys advanced by the plaintiffs to *A. Dix,*before the 11th of September, were advanced while the said *A. Dix*acted as the copartner of the defendant and the said *E. Dix;*and the receipts given by him therefor were subscribed *Blake Dix;*and those moneys were applied by him towards the discharge of debts due from the partnership, he having, by the private contract of dissolution aforesaid, assumed the payment of the same. It also appeared, from the books of the plaintiffs, that the advances made to *A. Dix,*from the 11th to the 30th of September, 1807, [ * 19 ] amounted to *more than 7000 dollars, and that property to that amount was during the same time received from him by them.

Upon these facts the judge who tried the cause charged the jury as follows: that the partnership between *E. Dix, A. Dix,*and the defendant, continued until the 17th of September, 1807, as to other parties than themselves, and that all the partners were *25liable on contracts made before that time in the partnership name, as their course of business continued, to all appearance, to he the same; that any violation of agreement between the partners did not concern other persons; that the plaintiffs had a right to consider *A. Dix*as acting for the partners; that, it being clearly proved that, in August, 1807, the plaintiffs advanced moneys to the amount of 15,273 dollars on the credit of the partnership name, and on the security of goods deposited, if the plaintiffs had sued the defendant and his partners in September, 1807, they would have recovered; that it was incumbent on the defendant to show that the debt so contracted had been legally discharged; to do this, the judge observed, the defendant had said that, on the 11th of September, *A. Dix*had deposited with the plaintiffs the goods which were shipped by the *Inghams;*that the plaintiffs then made an entry in their books, whereby they discharged the firm of *Blake &f Dix,*and charged *A. Dix*alone; and that the accounts were from that time, until the 8th of April, 1808, kept in the name of *A. Dix*; and the defendant had insisted that these proceedings discharged the firm of *Blake Dix,*and that the plaintiffs could not afterwards recharge that firm with the same debt.

Un a former trial, the same judge had instructed the jury that these proceedings amounted to a discharge of the firm of *Blake Dix,*and that the plaintiffs could not charge them again. But the judge now observed that the whole Court were of opinion that these proceedings were not a discharge, and that, by a mere entry by the plaintiffs, made in their own books without consideration, they could not lose their remedy; that, if there' had been evidence that all the parties interested assented to this transaction, still * the question would arise, whether this was a discharge [ * 20 ] or not.

The judge therefore further instructed the jury that the entry in the plaintiffs’ books did not discharge *Blake éf Dix :*the plaintiffs made a mistake, which they might rectify. It did not appear that *A. Dix*knew of these entries in the plaintiffs’ books so late as the 8th of April, 1808, unless, when the accounts were sent in, it appeared that they were not satisfactory; but why they were not satisfactory did not appear. If the entries made in the plaintiffs’ books were intended to be a discharge, the transaction wanted that solemnity which would amount to a discharge in law; and even if all the parties were present and assented to the entries, still the firm of *Blake Dix*were not discharged from the origina, contract.

The jury were further instructed that, if they had evidence that *26there was a payment on the 11th of September by *A. Dix,*or by any one else, it would be a discharge of the original contract. If they were satisfied that the delivery of the goods by *A. Dix,*on the 11th of September, was intended as a payment, and was so received, that payment ought to go in discharge of the original debt, or as far as it would go. Whether it was a payment or not, the jury were left to determine. It was observed to them that the goods were not valued, nor was any receipt given for them. If it was a deposit for further advances, it was not a payment; if it was a delivery on account of the demands then existing against the firm, it went deeply, if not fully, to discharge the demands.

The defendant relied on the giving of the promissory notes and the mortgages. These notes and mortgages were credited at a discount of 12 per cent. The jury were instructed that the notes of hand, given by one of the firm, were not a discharge of the partnership debt, and that the mortgages were merely collateral to the notes.

The defendant’s counsel moved the judge to charge the jury that the delivery of the goods received from *Inghams*by *A. Dix,*if considered by the plaintiffs as a payment or deposit [ *21 ] * on account of the company of *Blake if Dix,*constituted a lien in the hands of the plaintiffs for the use of *Blake if Dix;*and that, of consequence, the redelivery to *A. Dix*alone, for his separate use and private account, after knowing of the dissolution of the copartnership, was in the plaintiffs’ own wrong, and ought not to prejudice *Blake if Dix;*that such delivery of said goods by *A. Dix,*before the' dissolution of the copartnership, was, in law, a payment *pro tanto ;*and that the delivery of the notes and mortgages were, in law, payment of so much of the partnership debt as they were credited for.

But the jury were instructed that it was a question of fact for their decision, on what account, and whether as payment or not, the *Ingham*goods were received; and that the delivery of said notes and mortgages was not, in law, a payment or extinguishment of any part of the debt due from the firm of *Blake if Dix.*

A verdict being returned for the plaintiffs under the foregoing directions of the judge, the defendant’s counsel moved that the same should be set aside, and anew trial granted for theo supposed misdirection.

When the jury came into Court, they were asked, on motion of the plaintiffs’ counsel, whether they found the delivery of the goods on the 11th of September, 1807, to be a payment or not; and they answered that they did not find said delivery to be a payment.

*27The cause was argued at this term by *Dexter*and *Dutton*for the plaintiffs, and *Otis*and *Sullivan*for the defendant; after which the opinion of the Court was delivered by

Sewall, C. J.

If the case admitted of any doubt, we should be

disposed to defer the decision. The same case, in every essential circumstance, was decided when the new trial was granted at the motion of the plaintiffs. It would answer no purpose to open the cause again, now that the plaintiffs have recovered a verdict for their demand against Blake, the surviving partner of *Dix & Blake,*unless our former decision was incorrect.

* In that decision, the Court, proceeding upon the ad- [ * 22 ] mitted fact of a debt due from *Blake &/■ Dix,*as partners of a demand established against them in that relation, refused to consider the dealings of the plaintiffs with *A. Dix*separately and alone, respecting deposits and securities produced by him on his own separate account, as a payment or discharge of the demands against the partners. It is now urged that if it was not a discharge, if none was given expressly or impliedly by the plaintiffs, yet that their conduct was so negligent and so injurious to the partner of *A. Dix,*as to afford him a sufficient answer to this demand.

The transactions and negligence complained of may be briefly stated thus, as applicable to the question whether the direction to the jury at the last trial was incorrect.

After a secret dissolution of the copartnership of *Blake &/■ Dix,*before it was advertised or known, the plaintiffs received of *A. Dix*a quantity of goods, which he had imported for his private and separate account. Subsequent to this deposit, the demand against *Blake Dix*was balanced in the plaintiffs’ books, by transferring the amount to the separate account of *A. Dix.*But it does not appear that this was done at the request of either of the debtors, or that .either of them had any knowledge of the fact. *A. Dix*after-wards resumed a part of this deposit, and gave other securities, to the satisfaction of the plaintiffs, as collateral security. And, finally, after the balance, for which *Blake Dix*had credit by *A. Dix*in the statement of the account, had been reduced by the payments of *A. Dix,*what remained unpaid was treated again by the plaintiffs as a demand remaining against the partners, *Blake 8f Dix.*

The jury have negatived, under the direction of the judge at the trial, that the deposit of goods or securities, made and transferred by *A. Dix,*was intended or accepted as a payment or discharge. It is plain that he had no such intention; and the mere transfer of a leger account certainly is no agreement to that effect, especially if made without any request, or any particular consideration, or even * notice, as the transfer of a memoran- [ * 23 ] *28dum at the convenience and will of the party keeping it for himself.

Was the separate dealing with *A. Dix*prejudicial to the other partner, *Blake 1*Quite otherwise. For the separate effects of the former were so applied as materially to reduce the balance against the firm. But the complaint is, that this was not cancelled, as it ought to have been, by a determination on the part of the plaintiffs to retain every thing which came into their hands from *A. Dix,*in whatever manner deposited; that it was their duty to do this after the transfer made in their books; and therefore that the defendant was injured, because the disposition discovered by the plaintiffs' to this purpose was not persisted in.

The plaintiffs doubtless had the right to retain, as against a partner, his effects or moneys coming into their hands, and apply them to the payment of a partnership debt, where each was liable *in solidum.*But this is not done, I believe, where a firm is not discredited. In receiving *Inghams’*goods, no contract, amounting to a discharge, or to the acceptance of a pledge for the security and benefit of the defendant, had been given by the plaintiffs. *A. Dix*then represented the firm, as the partner authorized.to adjust the concerns of *Blake &/■ Dix. Blake*was himself secured, or supposed himself secured, by the indemnity and credit given by *E. Dix.*The confidence placed in *A. Dix*by the parties, now affected by his withdrawing what remained of that deposit, was sufficient, if any thing was wanting, to justify the plaintiffs in relinquishing a security, which they had indeed the power of retaining, but scarcely the right, against *A. Dix,*after his own separate balance was paid up. Thus to insist upon applying to one purpose goods explicitly received for another purpose, stated by the party making the deposit, and assented to by him who received it, would hardly be decent, whatever might be the right, unless when the party was discredited. But whatever was the right in the present case, there was no understanding of the plaintiffs to this effect. [ * 24 ] * It is not like the case cited and relied on for the defendant in the argument. (1) There a bill of exchange, accepted as payment of an account, which was admitted as a demand against the partners, the party sued being a dormant partner never known in the firm, was renewed by another acceptance in the name of the other partner, after information to the payee that the partnership had been dissolved. This was considered as payment of the account; and the last bill, given for the renewal of the former, was recoverable against the party to it, and not against the former partner.

*29In the case at bar, there is no acceptance of the credit of one partner, unless the transfer in the leger of a stated account is to be so considered. No actual renewal or alteration of the demand, after the partnership was known to be dissolved, has been proved in this case, no acceptance of any new form of contract. If a suit had been required upon the account against the partners in the lifetime of *A. Dix,*it must have been brought against them jointly; neither was liable alone. Nor is there any loss sustained by the defendant, or even a disappointment; since it does not appear that he had information of the transfer in the books of the plaintiffs, or of the nature of their expectations from *A. Dix.*After notice of the dissolution of the partnership, they were willing to be paid by him, with whom the concerns of the company were left; but this did not imply an acceptance of his credit alone, in discharge of the partnership debt.

*Judgment on the verdict*

(1)

 4 *Esp. Rep.*89, *Evans*vs *Drummond.*