Murray v. Herrick , 171 Pa. 21 ( 1895 )

Opinion by

Mb. Justice Green,

By the additional statement of the plaintiff’s cause of action he claims to recover against the defendant’s testator, because it was adjudged by the Supreme Court of New York that he and all the Herricks, including this decedent, were partners in the banking business at Waverly from April 1, 1872, to April 1, 1873, and in consequence thereof he the plaintiff had been adjudged to pay $6,551.31 debts of the copartnership, one third of which he seeks to recover in this action because the testator E. C. Herrick was his partner. On the trial of the New York case E. C. Herrick testified that he supposed he was a partner with the plaintiff and the others at the time stated. The referee in that case found as a fact that they were all partners together in the said business during the time stated, and this finding and consequent judgment was affirmed by the court of appeals of the state of New York. On the trial of the present case in the court below, the question of fact, whether all the parties in question were partners together in the said busi'ness, was submitted to the jury, and the jury found specifically that they all were partners. After such a state of the pleadings and such findings of the fact of the partnership of all the parties, this court must assume that such was the fact, and it is not necessary to consider any other aspect of the case than that. This being so the question is, whether when one of several partners has paid certain partnership debts for which all were liable, he can recover the share thereof, of any one of said partners, in an action of assumpsit without any settlement of the partnership accounts. As we understand the decisions this cannot be done except by means of an action of account render or by bill in equity. This was explicitly decided in the case of Leidy v. Messinger, 71 Pa. 177, as it has been in many other cases. We there said, Williams, J., “The defendant’s liability, if any, for the money claimed in this action does not arise from any express promise or' undertaking on his part. There is no evidence that it was paid at his request and upon his promise to repajo it. If he is liable for it, his liability depends solely on the obligation arising from the partnership relation created by the joint purchase of the stock. But a partner cannot maintain assumpsit against his copartner to recover the excess of his advances unless there has been a settlement of the accounts and a balance has been struck. And this rule applies whether the subject-matter or property of the partnership has ceased to exist or not. It would beget an intolerable multiplicity of suits to allow one partner to sue another for contribution as often as he paid moneys, or made advances, on account of the partnership.”

We said in Crow v. Green, 111 Pa. 637, “The case comes within the perfectly familiar rule that one partner cannot sue another partner for a partnership transaction except by bill in’ equity or action of account render,” citing a number of cases.

As the present action is brought by one who was a partner, against another who was a copartner in the same business,' to recover contribution for an alleged excess of payments by the plaintiff, of partnership debts, and as there is no pretense that there has ever been a settlement of the partnership accounts, it is clear that the present action cannot be sustained. -

Shamburg v. Abbott, 112 Pa. 6, has no possible application to this case. The facts were entirely different and do not raise the question involved here. There the plaintiff had withdrawn from the firm and the relation of partnership ceased to exist between him and the defendants. Being still liable to strangers who were ignorant of his retirement from the firm, he was obliged to pay some debts contracted by the firm after he left it, and he then sued the remaining members to recover the money he had been obliged to pay for them. As to them he was held entitled to the rights of a surety who had paid the debt of his principal.

The disposition of the case as to the remedy determines the whole controversy, and it is unnecessary to consider the assignments of error in detail. We sustain the fifth assignment, the others are not material.

Judgment reversed.