
    Casey and Lawrence, assignees of Nixon, a bankrupt, against J. Brush, surviving partner of S. L. Brush, deceased.
    
      Assumpsit cannot be maintained by one partner against another, for a balance due on a joint transaction, unless evidence be given of an express promise.
    Assumpsit by the plaintiffs, as assignees of Nixon, a bankrupt, for a balance of an account, due on a particular partnership, in which the bankrupt, the defendant, and Samuel L. Brush were concerned.
    The declaration contained a count for goods sold and delivered, the usual money counts, and an insimul com/pu-tassent, between the bankrupt and Jesse and Samuel L. Brush. At the trial the plaintiffs established by Nixon, whom they released, that the defendant agreed with him to be equally interested in a vessel and cargo then equipping for a foreign voyage. At the time, however, when this took place, Nixon did not know there was then a subsisting partnership between the defendant and Samuel L. Brush; but, after 7 barrels of beef had been purchased for the expedition, Jesse Brush informed the bankrupt that he and his brother Samuel were partners in business, and mutually concerned in the present adventure. After this communication, the residue of the loading was purchased taken on board, and the vessel sent on the voyage proposed. At *her return Nixon drew out the accounts of the expedition, and delivered a copy of them to Samuel Iv Brush, who neither objected to, nor admitted them, but said, “I can do nothing till my brother (the defendant) returns from Europe.” On this evidnee a motion was made for a nonsuit, because Samuel L. Brush was not one of the association when the connexion between the defendant and Nixon was first formed. This being overruled, the court charged, that the only consideration for the jury was, whether there was a sufficient evidence of a liquidation of accounts between Nixon and the defendant, or of an admission of the balance stated; if they were satisfied on these points, the plaintiffs would be entitled to their verdict for that amount, with interest; and thus the jury accordingly found.
    An application was now made to set aside this verdict, and grant a new trial on the following grounds: 1. Because there was no evidence of a partnership between Nixon and the two Brushes when the transaction commenced; 2. If there was such a partnership, the action ‘Sould not be maintained; 8. On account of the misdirection of the judge.
    
      Bogart, for the defendant.
    The contract respecting the adventure which has given rise to the present action, was between two parties only. This, therefore, can never affect a third person. In the case of Dewer v. Macomb and others, it appeared that after some of the parties had entered into a stock negotiation, Alexander Macomb was introduced, and this court determined that he could not be implicated in the original contract. The action here ought, therefore, to have been as between the original parties. The next point rests in some degree on the count on the insimul computassent. The evidence to that effect could not warrant the verdict. The mere receiving an account presented is not an admission of the balance it may show. It appears this was a partnership transaction. Till a dissolution, one partner cannot sue another. To maintain an action against one of a firm, there must be an express promise from the defendant. Moravia v. Levy, 2. D. & E. 488, n.(a). Here the reverse was the case, for the words used are tantamount to a refusal. Besides, they were spoken by a person not a partner (for he was not a party to the original contract) at a time when the defendant was absent in Europe. This, at the. utmost, can be only a promise by implication, and on the principles laid down in the authority cited, could not sanction the charge given.
    
      Johnson and Biggs, contra.
    If the parties were partners *when the contract was concluded, they are bound by it, though they were not known to be connected. Saville v. Robertson, (4 D. & E. 725,) decided, indeed, on the inverse of the position, though the principle itself was admitted. It is on this ground that dormant partners are held responsible. It was not necessary,»therefore, that Jesse and Samuel Brush should have appeared as connected in trade when the agreement was made. It was sufficient .that they were so; and when that circumstance Was afterwards disclosed, the full credit of the names of both was lent to the transaction, without any disclaimer from either. ' This is enough to make the firm liable, though the transaction was of a separate and particular matter. Be BerJcom v. Smith and Lewis, 1 Esp. 1ST. P. Ca. 31. Whether there was an actual promise or not was submitted to the jury, and the fair inference they drew from the expressions of Samuel was, that he could not pay it then, not that he objected to its amount. This was therefore, clearly a promise from both the partners, obligatory on each, and the action properly brought against the defendant as surviver. In the case of Bewer y. Macomb and others, several partners made a joint contract for the purchase of stock. After this, and before payment or delivery a new member was taken in, and the question was, whether he should be liable on the contract previously made. The court determined he should not. There the contract was perfected before he was a member of the firm. Here the contrary is the fact. The principle that a balance long struck, without any objection being made, shall be deemed to have been assented to, ought, in the present case, to be held to_ apply. The account was rendered in ’96, and never objected to till the time of trial.
    
      Bogert in reply.
    The expressions of Samuel L. Brush contain nothing to support the action. They prove neither express promise, nor admission. They simply import that he had nothing to do with the business, and refer the whole to the return of his brother.
   Livingston, J.

delivered the opinion of the court. The first objection to this verdict is, that Samuel Brush, not being a partner known to Nixon at the time of forming this adventure, but admitted afterwards, the action, if maintainable at all, is only so against Jesse Brush, with whom alone Nixon contracted.

This objection fails, in point of fact, there being sufficient evidence of a general partnership between the Brushes *when the voyage was determined on; for shortly thereafter Jesse introduced his brother to Nixon, as his partner in business, and as concerned with him in that enterprise, to which Samuel must have assented. Now, although there be some little uncertainty about dates, we are warranted in believing that this general partnership between the brothers existed prior to the undertaking of this voyage. It becomes unnecessary, therefore, to consider how valid the objection would have been, if Samuel had not originally been interested in this speculation. Probably, as in such case, the original contract would have been between Nixon and Jesse Brush, the latter alone, on the authority of Saville v. Robertson and Hutchinson, 4 D. & E. 720, would have been liable for any balance claimed by the former; but on this point we give no opinion.

Another objection, and, in our judgment, a fatal one, is that this being a partnership account, the action, in this form, is not maintainable. To obviate this difficulty, it is said that here was an accounting together, and a promise by Samuel Brush to pay the balance. Were this so we should certainly not be for sending the plaintiff’s to another forum, after the delay and expense which they must have incurred here, but that partners cannot, generally speaking, sue each other at common law, is a principle too well settled to be now shaken, nor is it necessary to inquire why it is, or ought to be so. Actions, however, of this kind, have lately been sustained after a balance struck and an express promise to pay. 2 D. & E. 483.

Further than this we are not willing to go, nor would some of the older cases justify our going this length. Sc far from an express promise to pay here, there is not even an acknowledgment of any balance being due. The ac count as stated by Nixon, but not even signed by him, and made out in tbe absence of the other partners, from books kept by himself, is delivered to Samuel Brush, (his brother being absent from the state,) who, without objecting or admitting it to be correct, said, “ he could do nothing until his brother returned from Europe.” This conduct admits of but one interpretation. Samuel Brush, supposing his brother better acquainted with the affairs of this concern than himself, was determined not to commit himself. We accordingly find his language as cautious -as it could well be. If being silent as to objections, ánd receiving the account, are to be evidences of a promise to pay, we know not how a man is to act so as to avoid *being drawn into a promise of this kind. An account, and particularly a partnership one of this kind, where there was no general connexion in business, and where the books were kept by Nixon himself, might be full of errors, and yet neither of the others be able immediately to detect them. No argument, therefore, can be drawn from the silence of Samuel Brush. But it is asked, why was the account kept so long without returning it with objections ? From the case, no one can say how long Samuel Brush did keep it, for he is dead, and may have died, for aught that appears, the very day after the account was delivered, and as to the present defendant, it does not appear when he returned from Europe, nor is there any evidence that he ever saw the account before this action was instituted. But keeping the account in this way can, at best, only be evidence of its being just, were the parties litigating in a court of chancery, but could not amount to that express promise to pay, without which a suit here cannot be maintained. The verdict, therefore, is palpably against evidence, and a new trial must be had with costs to abide the event of the suit. The costs are disposed of in this way because the jury were directed to find for the plaintiffs, if they were satisfied “ there had been a liquidation :f accounts between the parties, or an admis* sion of the balance due, as stated in the account rendered by Nixon.” The jury should have been told “that, without evidence of an express promise.to pay this balance, the defendants were not liable.”

Spencer, J.

Three objections are raised to the verdict in this case: 1. That when the contract was made between Jesse Brush and Nixon, Samuel was not a partner; 2. That the evidence offered by the plaintiffs was not sufficient to justify the verdict; 3. That the Brushes were separately answerable to Nixon, as joint partners with him, and not jointly answerable, and, therefore, the remedy is at law.

The first objection is founded on the evidence in the case, that Jesse alone made the contract with Nixon. But the case states,' although he did not then know of Samuel Brush, that after only seven barrels of beef had been purchased, Samuel was introduced by Jesse to Nixon, and it was then declared by Jesse that they were partners in business, and concerned together in that adventure. It also appears that when the account was rendered, it was delivered to Samuel, who made no objection as to the amount or manner of the charge. From these facts there can be no manner of doubt, that the *jury were warranted in presuming the partnership between the brothers was anterior to the contract made by Jesse with Nixon. If so, it then follows, that whether he was known to Nixon or not, he would, as a dormant partner, be equally responsible. Grace v. Smith, 2 Black. Rep. 998. The second objection is, I think, equally untenable. The evidence having shown the Brushes to be partners, the delivery of the account to one of them, and its being retained so long, are strong testimony of an admission of its correctness. The reason assigned by Samuel was no excuse for his not examining the accounts, and objecting to them if objectionable. It has been held in chancery that an ao count current, sent by one merchant to another, with a balance struck in favor of the remitter, shall, after being kept two years without objection, be considered as a stated account. Ticket v. Short, 2 Ves. 239. Sherman v. Sherman 2 Vern. 276 The rules of evidence being the same in both courts, I have therefore ground for saying, that in the present case, where the lapse of time was greater, the detention of the account so long, without expressing the least objection, was an admission of it. If it was considered as a stated account, the interest which the jury allowed was correct.

The third objection appears to me to be equally unfounded. Why, with respect to a particular share of a vessel, there may not be partners, I can see no reason. If there may be, then undoubtedly they might, in that capacity, become answerable to another person, holding a distinct share in the same vessel, as well as to any other individual. It is not stated in the case, but it has been attempted to be inferred, that Nixon and the Brushes were joint partners, and, therefore,.that the only remedy is in chancery. Without discussing whether, if they were partners, a suit at law could be maintained in the present case, I proceed on the ground that they were not partners. The defendant and his brother, as owners of a part of the ship, were bound to furnish their proportion of the cargo. Instead of getting credit of a third person, not interested in the vessel, they obtain that credit from Nixon, and why, for such advances, there should not be a legal responsibility I cannot perceive. It is true, that as respects third persons, the entire owners might be answerable jointly ; not, however, on the technical ground of partners, but as joint owners. The ingenious author of the Lex Mercatoria Americana, p. 423, very properly questions the notion that shipowners are to *be considered as partners. On the whole, in my opinion, the verdict ongh. not to be disturbed.

New trial. 
      
       In Wright v. Hunter, 1 East, 20, the court of king’s bench say, if three persons own one portion of a ship, and a fourth another, tho' gh as between creditors, they constitute one partnership, yet, as between themselves, the three make a distinct partnership; with whom the fourth may contract, and on that contract sue one or all of them, and, if all be not sued, they may plead in abatement.
     
      
       One partner, in a particular transaction, is not liable to the others, except on an express promise to pay. Townsend v. Goeway, 19 Wend. 424
     