Wright v. Eastman , 44 Me. 220 ( 1857 )

Rice, J.

From the evidence in the case, it appears that the parties in May, 1850, entered into an arrangement to procure and send to California a steamboat and vessel, in which she was to be transported, with such cargo and freight as they might deem for their interest to transport for themselves or others. The steamboat was purchased byt he defendant, and paid for in drafts, drawn by him, on the plaintiff, and by him accepted, payable in four, eight and twelve months. The vessel, called the Fanny, was built by the defendant, and drafts were drawn by him upon the plaintiff, from time to time, to raise funds for her construction. It seems to have been the understanding of the parties, that each was to contribute an equal portion of the funds necessary to pay those drafts, as they should mature, and also pay an equal portion of the expenses of the outfit, and share equally in the proceeds of the adventure. Neither advanced any cash originally, to put the enterprise on foot.

The papers in the case show that as the drafts which wore thus drawn came to maturity, neither party was in condition to pay them. The plaintiff became exhausted on the payment of the first draft given for the steamer, being one of those for five thousand dollars, and the defendant seems to have been equally exhausted by investing no larger sum in the construction of the “ Fanny.”

As their paper was running to maturity it became a serious question how funds were to be raised to pay them as they should fall due, and thus keep the “ ship afloat,” and rarevent a failure of the enterprise. To this end an arrangement appears to have been made by the defendant with Bates & Co., a mercantile firm in Boston, by which he was at liberty to draw on them in favor of the plaintiff, for funds. This arrangement was made, as the plaintiff declares, at his special instance and request, and as well for his benefit and accommodation as for the benefit and accommodation of tho defendant. Under this arrangement longer accommodations in the way of credits were obtained from Bates & Co. In this way, the enterprise appears to have been kept afloat, and their payments of the accommodation paper put forward. In the final payments of these acceptances to Bates & Co., as well as in advances for the general enterprise, the plaintiff claims that he is largely in advance, having paid much more than the defendant, and for this alleged excess he brings this action.

The defendant controverts this position, and alleges that the plaintiff has received from the proceeds of the adventure large sums, which much more than indemnify him for any advances he has made, and that as matter of fact, all the payments he has made, or the larger part of them, at least, have been made from the proceeds of the adventure in which they were jointly interested,- that all the claims of the plaintiff upon him grew out of partnership transactions which have not been finally adjusted and settled, and therefore this action cannot be maintained.

An examination of the evidence in the case has satisfied us that the whole enterprise out of which the claims and counter-claims between the parties originated, was a partnership transaction.

It is undoubtedly true that where one co-partner furnishes another funds, which it was the duty of the other to furnish as a part of the capital stock, with which to set on foot or launch the co-partnership, such funds thus furnished may be recovered in an action of assumpsit, without waiting for a final adjustment of the business of the copartnership. Marshall v. Winslow, 11 Maine R., 58. So, too, assumpsit may be maintained by a co-partner for a final balance due him after the business of the partnership has been finally settled, but not before. Williams v. Henshaw, 11 Pick. R., 79.

It is not suggested that all the business of the partnership, in this case, has been settled. The action cannot be maintained, then, as for a final balance due the plaintiff.

The evidence shows that there was no money originally paid into the concern by either party. The capital stock consisted in accommodation paper, principally, if not wholly. This paper, which was originally between the parties, was subsequently renewed and kept alive by the credit of Bates & Co. From what funds Bates & Co. were ultimately paid, does not distinctly appear; the whole matter is very much complicated. But however that may be, even if paid by the plaintiff, a* he contends it ultimately was, it was too remote from the original transaction, and too much involved in the subsequent business of the co-partnership to authorize the plaintiff to maintain assumpsit as for money advanced beyond his proportion, for the defendant, to set the partnership on foot. No judgment that could bo rendered in this case would settle the matters in controversy between the parties, but would rather tend to involve them in deeper complication and confusion. A process in equity would seem to be an appropriate remedy for the plaintiff.

Plaintiff nonsuit.