
    
      JOHNSON & AL. vs. INERARITY & AL.
    
    Appeal from the conn of the first district.
    When the Hiake«»tSto mustbejiidg-SiornonsuST ;
   Porter, J.

delivered the opinion of the court; The petition in this case contains two distinct' demands against the defendants, which are presented m toe common law form, by separate counts. The first demands of them $ 130,000, and the second $ 200,000, on the folio wing grounds:

That the defendants are ¿surviving partners of the commercial firm of John Forbes & co. late of West Florida; and that the firm of Pan-ton, Leslie & co., merchants and traders in the late Spanish province of West Florida, was composed, of five partners, to wit. Wm. Panton, Thomas Forbes, -----, Forrester, and Gen. Alexander MbGitveray, of the Creek .nation. That M‘Gilveray died in November, 1791; and that the profits up to the time of his death amounted to upwards of $250,000.

That, at the dissolution of the said firm of Panton, Leslie & co. the firm changed to that of John Forbes & co. who assumed all the debts due by the aforesaid house of Panton, Leslie & co., and who took and received all the debts clue the said firm, ata certain per cent, discount. That, in the month of October, lfe)6, there was a balance due the estate of M-Guvemy by Forbes &¿ co, oí Sod,000. which wítfi ten per cent interest now amounts to a larger sum than 8130,01)0, and that the heirs of M‘Gilve ray, for a good and valuable consideration. hate legally assigned to ihe plaintiffs all their interest and right in the debts thus due by Forbes & co. ■

That John Forbes died in the year 1823, and the defendants, who are surviving partners of the house of Forbes fe co. are icsponsihie for the sum aforesaid-

The second count alleges the defendants’ liability, by reason of tire Seminole Indians having sold to the house of John Forbes &. eo. successors of the firm of Panton, Leslie &, co, a large quantity of land, to pay a debt due to the latter. And to the one-fifth portion of which, or the proceeds arising from the sale thereof the heirs of M‘Gilveray, in right of their father, who was a partner in the house of Pan ton. Leslie A co. are said to be entitled.

To ibis petition, the defendants plead;

1. ,4 general denial of every fact alleged in the petition.

2. A special denial that the defendants, or either of them, ever undertook. assumed, <w . , ’ promised to pay any debt which Patón, Leslie ¿¿co or John Leslie & co. or any of the partners? or persons composing the said commercial house, or either oí them, might owe to Alexander M‘Gilveray, or to his heirs or representatives.

3. That the document under which the plaintiffs claim is not good or valid in law, because it attempts to sell a contested or litigious right, and because no lawful or valuable pricc- or consideration was ever paid for the same.

On these pleadings, the parties went to trial in the court below, and the judge being of opinion the equ itable plaint iff had not established Ms right to bring suit, gave judgment dismissing the petition. The plaintiffs appealed.

The point on which the court below decided the case, together with many others, have been argued with great care and attention in ⅛⅝ but the opinion..-,-we entertain on the me~ rits of the case, as it appears in evidence before us, renders it unnecessary to examine the other questions, which have been raised and discussed.

The defendants, we have already seen, are not charged in the petition with having been partners in the house of Panton, .Leslie & co. of which MLHlveray, under whom the plaintiffs claim, was a member.

This responsibility is charged, on the ground that the house of John Forbes, & co, of which the defendants are members, did, at the dissolution of the firm of Panton, Leslie & co. succeed to ail its obligations active and passive, arid that-among the latter, was one of .$53,00# te tibe estate of Alexander M*Gilr<erayv which Forbes & co. assumed to pay.

• This responsibility is expressly put af ii-suc by the answer: there is a special denial in it. that the -defendant®, or either of them, ever undertook, assumed, or promised to pay any debt,.which Panton, Leslie .& co. or any of the partners of said firm owed Mdilveray, lip heirs,-or representatives.

Our enquiry, therefore, is, has that responsibility been established?

T© prove it,- the most important, nay, we .might almost say, the only evidence produced, is a journal, which is brought into court by the defendants, under a rule directing them to produce the account books of John Forbes & co. and Panton, Leslie & co.

Before examining the particular entries, found in that book, and whether or not they establish the liability oí'the defendants, in the manner and to the extent, which the plaintiffs allege, it becomes important to ascertain whose book it was. If that of John Forbes & co. all that is written in it is evidence against the defendants, if that of Panton, Leslie &co* it is not, unless some other part of the evidence shews these firms to be so closely identified, that their property, interest and responsibility, were the same. Nothing, however, of that kind appears to take the case out of the general rule.

On this point, it is unnecessary to recur to the internal evidence, which the book itself presents, for we have express and positive testimony. Gordon, swears, in the evidence which he gave before the book was produced, that the entry on which the plaintiffs rely, was ⅛ the journal of Panton, Leslie & co.: after the production of the book, lie again states it to be one of the journals of that firm.

But the plaintiffs insist, that even admitting this book to have belonged to Panton, Leslie & co., still it makes evidence against the defendants, because the entries in it, charging the .house oí John Forbes & co. ith the sura due ,, t he late Alexander Abuilveray, were made m die journal under the eye, and with the approbation of the members composing the firm of Forbes & co.

The journal, in which the entry relied on is found, is, as we have already stated, that of Panton, Leslie & Co. It commences in the year 1796, and the daily entries in it close in the latter part of the year 1798. Those which succeed, are few in number, and general in their nature, and seem to have been made (as far as we can gather from an inspection of them) from time to time, as the transactions, which had commenced during the period the partnership was in active operation, came to a close, or as, the results in the other branches of the firm were ascertained. These entries continue at intervals up to 1806, at which date the books appear to have been closed. Among other accounts. of a general denomination to which charges are made, and credits given, we frequently find that of “old concern,” and “new concern,” and these two partnerships, or perhaps, more properly speaking, modifications of the same firm, seem to have had an im_ mediate and direct, .concern with* each other'.-ihougii not a perfect identity oí intered, A«long the last entries in the journal, the old concern is debited with the sum of $287,000, and three persons, to wit: William Panton, Thomas Forbes, and John Leslie, are credited with this amount.

Immediately succeeding these entries, there is a note by John Forbes, as executor of the three persons just mentioned, in which he states that he is convinced from various reasons, that Alexander M'Gilveray, was a partner in the house of Panton, Leslie & co., up to his death, and that his heirs are entitled to a share in the pxofits of the firm op to that time He therefore, proceeds to charge each of the three partners with the portion of the profits, which he conceives Mr. M-Gilveray's succession is entitled to, and credits the latter with the amount. One of the defendants, who was executor to Panton, as soon as he discovered this principle had been acted on, in sell ling the affairs of Pardon, Leslie & co., entered his protest against it on the books, but agreed the matter should remain in statu quo, until the case could be submitted with proofs to the lord chancellor of England. In a subsequent entry, we find William Panton, Thomas Forbes and !ohn Leslie, are made debtors to the new con- ' ecru in the sum of $209,000, and to M'Gilveray's estate in that of $42,000.

From thr-se facts as thus disclosed, the plaintiffs reason thus. The old concern was Pan-ton, Leslie and co.; the new concern was John Forbes & co.; and, it appears, all the property of the former passed into the hands of the latter.

Now, whatever may be the real state of the case,there can be no doubt that these assertions when tested by the evidence, appear entirely^ gratuitous. There is no evidence, that Forbes & co. were meant by the terra “new concern.” Tiiere is on the contrary, evidence the other way. The book, it must not be forgotten, is that of Pardon, Leslie & co. The entries, made in it, were to be posted into its ledge)’, atid for the settlement of its affairs. Now, the accounts opened for “new concern,’’ send “old concern," in which profits and losses were posted up and balanced, were entirely concerns, in which Panton, Leslie & co., had an interest, ft follows, then, that ifJohn Forbe° & co. were meant by the term “new concern,” Panton, Leslie k co., had an interest in the house of John Forbes & co., but this all the evidence in the cause contradicts. It is more than probable, the opening oí accounts undo» H>ese heads, in the books of Panton, .Leslie 4* co., was rendered necessary, by the changes which took place,in consequence of the deaths of members of that firm, and the introduction of others previous toils dissolution.At all events we find, so far back as the year 1796- an account opened in private for the u old concern.''1 This shews at that time there were certain interests which it were necessary to keep separate, and that they were designated by that term, in opposition to those w'hich were then the “new concern.” When therefore, the executors of the partners of that linn were posting up and closing the hook, in 1806, they must be understood to use these expressions in relation to the interests and parties, whicbrthese expressions were first applied to in the books, or in other words, that the “old concern,” and “new concern,” at the close, were the same “old concern,” and “ new concern,” whose interest Tor so many years had been kept separate arid a part.”--. If tills be true, and we do not see how it can life doubted, then the “new concern’’ was in existence and had debit and credit on the books of Panton, Leslie ⅜ co., years before the hounr- of John Forbes ⅝ co. was formed.

riiir- appears a potveriula rgmnem. against, the conclusion oí the plainliiL, lira), Forbes <V co., were meant by the expression - new concern.” For no reason has been given, or evidence in. trod need, to induce us to conclude, that the term, after having been used for a length oí time in relation to persons oilier than Forbes &- co ■ was afterwords shifted to them.

The claim set up in the second count wat abandoned in argument. The evidence is clear, that the lands were given in payment o* debts, contracted alter M-Ciiverav bad ceased to be a partner, sn ¡be house oí Paul on, Leslie 8f co.

We conclude our remarks, on tins part of the case, by repeating, that whatever may he the real nature oí'the transactions, between the different linns which succeeded each other in this business, in Pensacola, the evidence before us totally fads in supporting the plaintiffs pretentions, and de nouappareatihus., cl none:*-ietentibus eadem est lex.

But. admitting with the defendants, that the house of Forbes & co. succeeded to that of ; Panton, Leslie & co. and became bound to pay their debts; still the claim of the petitioners cannot be sustained. For it was the debt:- due by Panton. Leslie & co. ai the time ot the ilL-solution of that firm they became responsible i"or' No,v the claims, which M-Gilveray might have had in the profits of a former partnership under the same name, which had expired seven years before, formed no part of the debts of the new firm of Panton, Leslie ⅜ co. The surviving members, of the old firm of which M*Gii-veray was a partner, owed him in their individual capacity his share of the profits. But their being indebted to him did not make any new partnership they might enter into, his debtor, nor give him a right to claim a share in any of the property which composed the stock of that partnership. His demand, or the demands of his heirs, should bedirected against the heirs and representatives of his co-partners, who composed the firm of Panton, Leslie eo. at the time he withdrew from it, or ceased to be a member by his death.

On the whole, we conclude, there is no evidence the house of John Forbes co. ever assumed to pay the heirs of M'Gilveray, their claims in the firm oí' Panton, Leslie & Co. No evidence the funds of that firm ever passed with all its debts active and passive into the hands of Forbes & co. and that, even if they had, they would raise no obligation in favor of the petitioners, their claim being against the former partners of M4Gilveray in their individual capacity, not against any new firm they might have subsequently entered into.

Johnson, Hmmn, Ripley and W&ggaman for the plaintiffs, Workman, Grymes and Ernies for the defendants.

This opinion renders it unnecessary to examine any of the bill of exceptions taken on the trial. And it is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  