Bishop v. Edmistok , 16 Abb. Pr. 466 ( 1863 )

By the Court.—Sutherland, P. J.

The case made by the complaint is this. The plaintiffs and the defendant McLauehlan owned a vessel. She was insured for §6,000,—for §2,000 in three different insurance companies. She was lost at sea. The owners employed the defendants, the Edmistons, to collect the insurance moneys. They received §2,000 in cash of one of the companies; settled with another, and took its notes, without the authority or assent of the owners, which notes they might have collected ; the third company was insolvent, but had large-assets, which went into the hands'of a receiver, but the plaintiffs are ignorant what amount the Edmistons had received of the receiver. The Edmistons knowing that the plaintiffs were entitled to one-half of the moneys collected, applied them to the payment of an individual debt of the defendant McLauehlan, by giving him credit with his assent on an account they had against him.

The complaint asks for an account of the moneys which the Edmistons had received, and.which they ought to have received or collected, ánd that they be adjudged to pay over to the plaintiffs their shares of the fund.

The Edmistons demurred to the complaint, upon the grounds, among others, that there was a defect of parties-plaintiff, and that several causes of action were improperly united. The justice at special term, ordered judgment for the defendants, the Edmistons, on the demurrer, on the ground that the defendant McLauchlan should have been united with the plaintiffs as a party-plaintiff.

This appeal is from the order at special term. It is quite clear that the order was erroneous, and should be reversed.

Although a vessel, like any other chattel, may be held in partnership, and constitute a part of the stock of the firm, yet the plaintiffs and McLauchlan were not partners, and did not own the vessel as partners. They were tenants in common, and part-owners; not partnership owners of the vessel, and of the insurance fund. (1 Parson's Maritime Law, 82; Munford a. Nicoll, 20 Johns., 611.)

Although the Edmistons were employed by all the owners to collect the moneys, yet they had a right to pay each his share, and perhaps they would have had a right to pay over all the moneys collected to either of the part-owners; but it is not necessary to examine or decide that question in this case, for they had not actually paid over any portion of the moneys to either of the part-owners.

If the Edmistons had actually paid over to McLauchlan all the moneys collected, the plaintiffs might have had a remedy against him for their shares; but, on the facts stated in the complaint, I do not think that they had a remedy against him alone.

McLauchlan, however, could not repudiate the arrangement between him and the Edmistons, by which he received credit not only for his own share, but for the plaintiffs’ shares. As to him the credit was payment of his share, and he would not be permitted to say otherwise. Having then received payment of his share, and having no right to the plaintiffs’ shares, why should he have been made a party plaintiff? I can see no reason for so holding.

In the case of Everinghim a. Ensworth (7 Wend., 326), cited in the opinion at special term, the plaintiffs were partners; and the case merely decides that a debt due to a firm cannot be discharged by one of the partners applying it in payment of his individual debt to the debtor of the firm, without the knowledge or approbation of the other partners.

As to the ground of demurrer, that several causes of action were improperly united; the complaint may contain irrelevant and redundant matter, but it is plain to me that it cannot properly be said to contain more than one cause of action.

The plaintiffs may ask for relief that they are not entitled to; they may not be entitled to recover any thing more than their shares of the moneys actually received by the Edmistons, and credited by them to MeLauchlan. But conceding this, would not affect the question of there being more than one cause of action in the complaint. .

The order appealed from should be reversed, with costs.

Clerke and Barnard, JJ., concurred.