William Pote, for the Use of W. L. Brent, v. William Philips, 5 Cranch 154

Morsell, J., because he thought there was no evidence tending to prove a settlement; and because a settlement and balance struck and acknowledged by the parties, will not support an action at law without an express promise to pay. Cranch, C.

J., thought there was some evidence tending to prove a settlement, namely, his acknowledgment that he owed, or would owe the plaintiff $1,000 upon the partnership concerns; the meeting being for a settlement, and having the whole accounts open before them, and the amount and balance being stated by the witness in the presence and hearing of the defendant, and not objected to; and that these circumstances should be left to the jury- Pie was also of opinion, that if there was a settlement of the whole partnership accounts, and a balance struck and admitted by the parties, an express promise to pay, is not necessary to support an action by the creditor partner.

He observed, that all the cases, in which it is said that an express promise is necessary, depend upon the ease of Foster v. Allenson, 2 T. R. 483, in which the only question was, whether the plaintiff ought not to have brought his action of covenant upon the sealed articles of partnership, by which each partner bound himself to pay any balance which should appear against him upon the final settlement of the accounts, and not an action of assumpsit; because covenant is a higher action than assumpsit; and the rule of law is, that a man shall not maintain the inferior, when he has a right to a superior action.

But the Court decided, that although the plaintiff might have had an action of covenant on the articles, yet, as the acknowledgment of the balance of the partnership accounts was a good consideration for a promise, and as, in that case, there was an express promise to pay, the action of assumpsit was maintainable. Neither in that case, nor in the case referred to in the note to that case, is it decided that an express promise was necessary in any case where the plaintiff is not entitled to a higher action.

The reason why one partner cannot sue another at law is, that nothing is due from one to the other on account of the partnership transactions, until the final settlement of the partnership accounts which can be compelled only in chancery. But when the partnership is dissolved, and the accounts are finally settled, and the balance struck and admitted, the reason ceases, and the parties stand in the same relation to each other, as ordinary debtors and creditors; and there is as much reason why the law should imply an assumpsit upon the acknowledgment of the balance due, in one case, as in the other.

The jury found a verdict for the plaintiffs; and the Court granted a new trial, which came on at March term, 1837, when Mr. Hellen, for the defendant, prayed the Court to instruct the jury, in effect, that there was no evidence of a final settlement of the partnership accounts, and that if there were, the defendant is not liable at law, unless upon his express promise to pay the balance. The Court (Cranch, C. J., contra,) stopped Mr. Hellen, who cited 9 Serg. & R. 241, and who was about to argue in support of his prayer; and requested to hear the other side. Mr. Brent, for the plaintiff, cited Clark v.

Glennie, 3 Starkie’s Rep. 60; Rackstraw v. Imber, 1 Holt, 368; Robertson v. Curtiss, 1 Starkie’s Rep. 63, 78; Musier v. Trumpbour, 5 Wend. 275; Davis v. Barney, 2 Gill & Johns. 404; Starkie on Ev.

part 4, p. 434; Bank of the United States v. Smith, 11 Wheat. 172; 4 Wheeler, Dig. 342. The Court (Cranch, C. J., contra,) gave the instruction as prayed by Mr. Hellen. Verdict for the plaintiff, $950, with interest from 11th August, 1833.