Finley v. Lynn. 6 C.

bill that Mr. Justice Todd dissented. The bill prayed for an injunc tion, on account, and general relief.

Swann and Youngs, for the appellant.

E. J. Lee and Jones, for the respondent.

*MARSHALL, C. J., delivered the opinion of the court, as [247] follows, namely:1

The plaintiff and defendant had been copartners in trade, and had carried on their business in two stores; the one a jewelry store in the name of Lynn, to be conducted exclusively by him; the other a hardware store in the name of Finley & Lynn, to be under the joint management of the partners.

Previous to the commencement of their partnership, Lynn had contracted a debt to Lemuel, Wells & Co. of New York, for goods ordered for a jewelry store carried on by himself, which goods it was mutually ageed to transfer to the new concern, and the debt to Lemuel Wells & Co. should become a debt chargeable on the social fund. In February, 1805, it was agreed to dissolve the copartnership; and articles were entered into to take effect on the [248] first day of March. The terms were, "that Adam Lynn shall withdraw all the property put into the joint stock by him, and that he shall have the goods in the jewelry store, and all the debts due to that store, as a compensation in lieu of the profits arising from the whole business; and the said Finley agrees to take, on his own account, the goods in the hardware store, and the goods which are ordered in the spring, and to indemnify the said Adam Lynn from all claims or demands upon the said concern, or which may arise for goods now ordered, and not yet arrived."

"On

On the second of March, a bond of indemnity was executed, the condition of which, after stating the dissolution, proceeds thus: which dissolution it was, among other things, agreed that the said Oliver P. Finley should satisfy and pay all debts and contracts due from, or entered into by, the said copartnership, or either of the said copartners, for or on account of, or for the benefit of the said copartnership, including certain debts due from the said Adam Lynn for goods by him ordered, which have been received by the said copartnership, and also all debts which may arise from merchandise hereafter shipped to the said concern, in consequence of any orders heretofore made.

'Judge Johnson was absent.

Finley v. Lynn. 6 C.

"Now the condition of the above obligation is such, that if the said Oliver P. Finley shall well and truly satisfy and discharge all the debts and contracts hereinbefore described, so as to indemnify and save harmless the said Adam Lynn from the payment of the same, and from any suit or prosecution in law or equity for or on account of the said debts and contracts, then this obligation to be void."

Some time previous to the dissolution, an action had been brought by Lemuel Wells & Co. against Adam Lynn, for the recovery of their debt, which was then depending.

In December, 1806, Adam Lynn, for the first time, claimed, [* 249] under the bond of indemnity, the amount of *the debt to Lemuel Wells & Co., and, payment being refused, instituted a suit on the bond. Supposing that no defence could be made at law, judgment was confessed, with a reservation of all equitable objections to the payment. A bill was then filed suggesting that the bond was executed by mistake, and in the confidence that it was in exact conformity with the articles, and praying that it might be restrained by the articles. Several extrinsic circumstances are also detailed and relied upon as demonstrating that Lynn himself did not suppose, until so informed by counsel, that the bond comprehended this debt. An injunction was granted, which, on the coming in of the answer, was dissolved, and, on a final hearing, the bill was dismissed.

The answer denies all the allegations of the bill which go to the mistake under which the bond was executed; insists that it conforms to the true meaning of the articles and intent of the parties; and endeavors to explain those extrinsic circumstances on which the plaintiff relied.

That a bond, executed in pursuance of articles, may be restrained by those articles, if the departure from them be clearly shown, is not to be controverted. But in this case, the majority of the court is of opinion that no such departure is manifested with sufficient clearness to justify the interposition of a court of equity.

By the articles of copartnership, the debt to Lemuel Wells & Co. was assumed by the firm of Finley & Lynn, and was payable out of the partnership fund. It is true that, at law, it did not constitute a demand against the partnership, but the court is much inclined to the opinion, that, had Lynn become insolvent, a suit in equity might

have been sustained, on this claim, against Finley and Lynn. [* 250 ] If it might in equity, though not in law, be a "claim *or demand upon the concern," there does not appear to be such a repugnancy between the bond and the articles as to induce the court to say that the bond, which, so far as is shown in this cause,

Finley v. Lynn. 6 C.

was executed without imposition, and with a knowledge of its contents, binds the obligors further than they intended to be bound. The extrinsic circumstances relied on are certainly entitled to much consideration; but they are not thought sufficiently decisive and unequivocal in their character to justify a court of equity in restraining legal rights acquired under a solemn contract.

Though this is the principal object of the bill, it may be understood to contemplate something further. It prays for a settlement of all accounts, and for general relief.

So far as the accounts between the parties are closed by the articles of dissolution, no reason can be assigned for opening them. But if rights, growing out of those articles, require a settlement, the plaintiff is entitled to an account.

By a majority of the court it is conceived that if any profits had arisen on the jewelry store, independent of the goods on hand and of the debts due to the store, the plaintiff is entitled to them. It is not probable that there are such profits; but it is very possible that there may be. Large sums of money may have been received, and might either be on hand when the dissolution took place, or have been diverted to various uses. If such be the fact, the majority of the court is of opinion that any fair construction of the articles gives those profits to the plaintiff. The contract is, that Adam Lynn shall have "the goods in the jewelry store, and all the debts due to that store, as a compensation in lieu of the profits arising from the whole business." Now the profits of the jewelry store, if any, not existing in debts or goods, were certainly a part of the "profits of the whole business," and are, consequently, yielded to the plaintiff.

That this was the deliberate intention of the defendant, *is avowed in his answer. A proposition for a dissolution [* 251 ] was, he says, made by him in writing and accepted by the

plaintiff. That proposition is, "that the defendant should have the merchandise in the jewelry store, and the debts due to that store, as a compensation in lieu of the profits of the whole business; that the complainant should hold the merchandise in the hardware store, and the debts due to it, and the profits of the trade."

Now the profits of the jewelry store are certainly a part of the "profits of the trade."

The plaintiff also claims a debt said to be due from the jewelry store to the hardware store.

As all the debts due to the hardware store are obviously assigned to Finley, this debt becomes his property, unless his claim to it is relinquished by the undertaking to pay all debts due from the con

cern.

Finley v. Lynn. 6 C.

The words of this undertaking are to be looked for in the condition of his bond. He is to "satisfy and pay all debts and contracts due from, or entered into by, the said copartnership, or either of the said copartners, for or on account of or for the benefit of the said copartnership."

The terms of this stipulation appear to the court to be applicable to claims upon the copartnership, and not to claims of a part of the company on the other part. He is to satisfy and pay all debts and contracts due from, or entered into by, the said copartnership, not to release the claim of one store upon the other. This is a claim which did not exist upon the copartnership, and which grows out of the articles of dissolution. Those articles assign to the plaintiff all the profits of the hardware store, as well as the debts due to it. They separate what was before united. They draw the distinction between the hardware and the jewelry store, and make the debt due to the hardware store a part of the profits of that store.

[*252]

The residue of the condition does not affect the question, and need not be recited.

It is, then, the opinion of a majority of the court that, if there was really a debt due from the jewelry store to the hardware store, Finley is entitled to that debt.

This is a proper subject for an account.

The plaintiff has probably not applied for this account in the court below, and it does not appear to be a principal object of his bill. This court, therefore, doubted whether it would be most proper to affirm the decree dismissing the bill with the addition that it should be without prejudice to any future claim for profits, and for the debt due from one store to the other, or to open the decree and direct the account. The latter was deemed the more equitable course. The decree, therefore is to be reversed, and the cause remanded, with directions to take an account between the two stores, and an account of the profits of the jewelry store, if the same shall be required by the plaintiff.

TODD, J., concurred in the opinion of the court that the debt of Wells & Co. was a debt to be paid by Finley, but he differed upon the other part of the case, being of opinion, that the complainant was not entitled to a relief which by his bill he had made a merit of waiving.

Decree reversed, and the cause remanded, with directions to reinstate the injunction, and take an account.

19 H. 162.

Sheehy v. Mandeville. 6 C.

DE BUTTS V. BACON and others.

6 C. 252.

If an agent, who has, by permission of his principal, sold 8 per cent. stock, applies the money to his own use, and being pressed for payment gives a mortgage to secure the repayment of the amount of the stock with 8 per cent. interest thereon, it is usury.

ERROR to the circuit court for the District of Columbia, in a suit in chancery, brought by Samuel De *Butts against [* 253 ] James Bacon and others, the object of which was to foreclose a mortgage made by Bacon to De Butts. The condition of the mortgage was, that if the defendant, Bacon, should pay to the complainant the interest of eight per cent. upon one thousand dollars of eight per cent. stock of the United States, loaned by the complainant to the defendant, and should further pay to the complainant "the said sum of one thousand dollars," &c., the deed should be void.

The defendant, Bacon, pleaded the statute of usury, alleging that it was a loan of money and not of stock.

The facts of the case appeared to be, that the complainant, Samuel De Butts, intending to speculate in a voyage with Captain Elias De Butts, authorized the latter to sell $1,000 of eight per cent. stock of the United States, which he did through the agency of the defendant, Bacon, who received the money. The plan of the voyage not having been prosecuted, the complainant wished to get his stock back again, but could not get either the stock or the money from Bacon. It was, however, finally agreed, that Bacon should be considered as answerable for the stock, and should give a mortgage to secure the repayment of the stock, and eight per cent. interest.

The court below decided the contract to be usurious, and decreed the mortgage to be void. Which decree, this court, after argument, by Swann, for the appellant, and Youngs, for the appellees, affirmed.

SHEEHY V. MANDEVILLE AND JAMESSON.

6 C. 253.

If a negotiable note of one joint debtor be received in payment, the debt is extinguished.

A judgment against one joint debtor, in an action of assumpsit, can not be pleaded in bar by the other alone, in an action against both, founded on the original promise of both.