
    G. F. Grover & others vs. Harry P. Smith.
    Suffolk.
    November 21, 1895. —
    January 3, 1896.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathbop, JJ.
    
      Goods sold — Partnership—Vendor and Vendee — Action— Tender.
    
    If goods of a partnership are sold under an arrangement, made between the managing member of the firm and the vendee, that a certain portion of the price fixed shall be applied to a private debt owed by the former to the latter, an action cannot be maintained by the members of the partnership to recover of the vendee such portion of the price, the rest having been paid; and it is immaterial whether or not the vendee acted in good faith.
    A plea of tender in an action for goods sold is bad, if not made until after an appeal from the judgment of the court where it was originally brought.
   Holmes, J.

This is an action of contract brought by the inembers of a partnership for goods sold to the defendant, The goods were sold under an arrangement, made between the managing member of the firm and the defendant, that one quarter of the price fixed should be applied to a private debt owed by the former to the latter. It is this part which now is sued for. The rest has been paid, except twelve dollars and nineteen cents, as to which the only question is one of tender.

The case is governed by Homer v. Wood, 11 Cush. 62, which is stronger than this. There the claim of the firm, which one partner had undertaken to set off against his own debt, was preexisting, so that his transaction was only an unauthorized attempt to discharge a valid claim, yet it was held that he could not rescind his own act, and that as he necessarily was one of the plaintiffs, they could not recover. Here the original terms on which the defendant accepted the goods were as we have stated, and the plaintiff who made the contract, at least, cannot recover on á different contract from the one he made. It is true that the agreed facts do not expressly state that the defendant acted in good faith, but that is immaterial. Farley v. Lovell, 103 Mass. 387.

P. B. Kiernan, for the plaintiffs.

S. W. Creech, for the defendant, submitted the case on a brief.

The plea of tender is bad. Brickett v. Wallace, 98 Mass. 528.

Judgment affirmed. 
      
       The action was brought originally in the Municipal Court of the city of Boston, fz'om the judgment of which an appeal was taken to the Superior Court, where the following motion by the defendant to amend his answer was allowed and filed: “ And the defendant says that on the 12th June, 1888, he tendered to the plaintiff in said cause the sum of $13.80.”
     