
    John Taylor against Samuel Holman.
    Charleston,
    May, 1817.
    
      mtii ^between oSf oSf a“tipuiaüon¡ concerning a joint píofectódTOj-V reciprocally3 dependent, and the non-peHormaníe fímlatoniúsml part. '
    tifTgoee/£rin¿ accmmt to’be^ta-I<en and settled, fmisth’e'°courtaof Eqmiy.
    This was an action of assumpsit-, brought on the following agreement: “ It is agreed between Moses Myers, Samuel Holman, and John Taylor, to - . “t out the schooner Centurion, from Georgetown, on an African voyage, viz. they agree, the said J ° J 0 Holman and Moses Myers, to gire the saiu John Taylor, for two-thirds of the schooner Cen- ' ” turion, at the rate of two thousand five hundred dollars for the schooner, and the said John Tay- ° l°r reserves the other third as his share, the carg0^ scli00ner, and outfits to be on the joint account of the said parties, and each individually is to exert himself for the benefit of the whole. However, it is understood that the said Samuel Holman will purchase what cargo may he required in Charleston, and it is also understood that the said John Taylor and Moses Myers will furnish all the outfits, and account for the whole of the schooner, and every other matter that may he required for the voyage, and on comparing the several accounts, the party or parties that fall in debt to each other, to account for the same; and upon the arrival of the vessel and cargo in Georgetown, the cargo and vessel to be disposed of as we may jointly agree.” This agreement was dated the 20th October, 1805, and signed by the parties. The alleged breach of this agreement was the non-payment by the defendant of one-third of the stipulated value of the schooner. On the pari of the plaintiff this agreement was given in evidence, also a letter from the defendant to the plstiniiff, dated 3d February, 1804, in 'which he declares he is unable to perform his part of the contract in furnishing the cargo, and another dated 27th February, 1804, in reply to one from the plaintiff, in whieh he declares that he considered the contract at an end, for the reasons stated in his first letter.
    On the part of the defendant, it was: proved that the plaintiff dismissed the captain of the Centurion, arid the seamen, and sold her for 800 dollars. He also proved by one witness that she was not sea-worthy for the contemplated voyage. The plaintiff examined, in reply, a ship carpenter, who declared that a short time before this agreement he had repaired her hull, and believed her to be sea-worthy, but he confessed he did not know what was necessary for an African voyage. There was no proof that the plaintiff had performed any part of the stipulation incumbent on him and Myers to equip and fit out the vessel. The presiding Judge charged the Jury that the agreement contained an independent promise on the part of the defendant to pay the plaintiff onéthird of the stipulated value 'of the Centurion. That it was unnecessary to prove the performance of the promises incumbent on him, and that it was too late to object that the contract was a joint contract between the plaintiff, the defendant, and Mr. Myers, which ought to have been pleaded in abatement. The Jury found a verdict for the plaintiff for one-third of2500 dollars, deducting one-third of 800 dollars therefrom.
    A new trial is moved for, on the following grounds, viz.
    1. Because tl\e agreement did not contain an independent contract on the part of the defendant to pay one-third of 2500 dollars, but was one of the several mutual and dependent promises contained in the agreement, and because the plaintiff ought to have proved the performance of the promises on. his part.
    2. Because the presiding Judge misdirected the Jury, by stating that it was unnecessary for the plain tiff to prove such performance to maintain his action.
    3. Because Mr. Myers ought to have been, joined as a plaintiff in the suit.
    4. Because the evidence in the cause proved a dissolution of the contract.
    5. Because the evidence proved the vessel to have been unseaworthy for the voyage contemplated.
    6. Because the Judge charged the Jury that the only point in the case for their consideration was, whether the plaintiff did not rescind the contract for the sale of the vessel under the agreement, by his subsequent conduct in selling her? Whereas it is alleged that another important question was, whether the vessel was not unseaworthy, and therefore the contract void from, the failure of the consideration ? ,
    The case was tried before Mr. Justice Gnmke, at Georgetown, in April Term, 1811,
   Cheves, J.

delivered the opinion of the Court.

It is unnecessary to consider all these questions. The only argument by which the motion for a new trial has been opposed, is,, that the agreement contained a contract on the part of the plaintiff to sell one-third of the Centurion to the defendant; and on the part of the defendant, to pay for the same one-third of 2500 dollars', and that this contract was independent of the partnership agreement and objects, except as it was the means by which the defendant, furnished a part of his portion of the joint stock. On the other hand, it is alleged that the plaintiff was to throw the schooner into the concern as joint stock; that he and Myers were to contribute further to the joint stock by Equipping and fitting her out for an African voyage, while the defendant should furnish his portion of the stock by purchasing the cargo. That on comparing the disbursements of each, (in which the schooner was to be estimated at 2500 dollars, made by the plaintiff or by him and Myers,) they should account as partners, and this the Court thinks is clearly the just and necessary construction of the instrument.

It might indeed happen, as was argued by the counse^ l>or the plaintiff, that a partnership agreement should contain an independent contract _ _ between two or three or more copartners; but a contract would come in a very questionable shape, and ought to be very clearly and distinctly expressed. We do not think, however, that there is any foundation for this argument in this case. It would be necessary to believe what would be highly preposterous, that the defendant was to pay the plaintiff in money the value of one-third of the vessel, and also furnish all the cargo, to become an equal sharer in the adventure. This is impossible.

But it was argued, that unless this action could be maintained, the plaintiff would have no remedy for an injury which he had sustained by the defendant’s non-performance of his partnership stipulations, by which the plaintiff had been prevented from using or selling his vessel until she had become greatly deteriorated in value. Is it not seen that this argument gives up the ground of action, which is not for a violation of the partnership agreement, but on an alleged contract independent of the partnership agreement, for the sale of one-third part of the vessel ? But instead of showing a want of remedy, it points distinctly and clearly to a remedy, viz. an action on this agreement for the non-performance of the defendant’s stipulations, in which the plaintiff will recover damages for the injury he has sustained, upon proving that he has performed his part of the dependent promises (for such they clearly are, (2 Johns. N. Y. Rep. 145, 148. Barruso v. Madan) which form the agreement, without which he is neither legally nor justly titled to recover any thing. If his demand be in the nature of a partnership account, he will find an appropriate and comprehensive remedy in a Court of Equity, where alone such transactions are cognizable.

K. L. Simons, for the motion.

Richardson, contra.

The Court is unanimously of opinion a new trial ought to be granted.  