Burley & Harris vs. Harris, 8 N.H. 233

Up ham, J. The authorities are very clear, that an individual cannot stand in the relation of plaintiff and defendant in the same suit. A judgment in such case would avail nothing, as the defendant would have the same right to discharge an execution founded on it as the plaintiff. The question has arisen in numerous instances where an individual has been a member of different firms, in which one firm held claims against the other, and attempted to enforce them at law.

Judge Story, in his treatise on Equity, says that no suit can be maintained at law in regard to any actions or debts between two firms, where individuals of tire firms are partners in each. In such a case, all the partners must join and be joined ; and no person can maintain a suit against himself or against himself with others. The objection is a complete bar to the action.

Nay, even after the death of the partner or partners belonging to both firms, no action upon any contract, or mutual dealing, ex contractu, is maintainable by the survivors of one firm against those of the other firm : for in a legal view there never was any subsisting contract between the firms, as a partner cannot contract with himself. 1 Stores Eq. 630; 6 Taun. 597, Bosanquet vs. Wray; 2 Bos. & Pul. 120, Mainwaring vs. Newman; 9 Barn. & Cres. 532, Jones & al. vs. Yates & al. In 6 Pick. 316; Eastman vs. Wright; and 12 Pick. 39, May vs. Parker, are remarks of the court to the same effect.

In the case of Holmes vs. Higgins, 1 Barn. & Cres. 68. it appeared that a number of persons had associated themselves together, and subscribed sums of money for the purpose of obtaining a bill in parliament to make a railway. It was holden that they were partners, and that a subscriber who acted as a surveyor in their employ could not maintain an action against all or any of the subscribers.

Chief Justice Abbot held that the subscribers were partners, and that it was perfectly clear that one partner could not maintain an action against his co-partners for work and labor performed, or money expended, on account of the co-partnership. But in this case the partnership effects have been assigned to one of the firm, and it is contended that the assignment should be protected and the holder of the partnership property permitted to enforce all claims in the partnership name. This doctrine is correct.

In many instances of dissolution of partnership the remaining partner is, by agreement, exclusively authorized to arrange the joint affairs, and to receive the partnership credits, as the fund out of which to discharge the partnership debts. Where this is the case, and notice, as well of the dissolution as of the private arrangement between the parties, is given, a debtor to the firm cannot, by colluding with the outgoing partner, obtain from him a discharge of the debt. Gow on Part. 275; 2 Camp. 561, Henderson vs. Wild; 3 Barn. & Cress. 421, Skaife vs. Jackson; 1 Wash. 77, Scott vs.

Trents; 1 Chit. 390, Mountstephen vs. Brooke; 4 Moore 192, Arton & al. vs. Booth. The claims of the firm against all persons, other than the partners, may well be enforced under such an arrangement. But until a final adjustment is made of the balance due on all partnership accounts, or at least until some balance is struck, and a specific sum is found due to some one partner, no suit can be enforced by one member of a firm against another. Gow on Part. 88; 4 Dal. 434, Walker vs. Long; 14 Johns. 318, Murray vs. Bogert & al.; 2 Con. Rep. 425, Beach vs. Hotchkiss; 12 Mass. 34, Bond vs. Hays; 15 Mass., Wilbey vs.

Phinney; 3 Pick. 420, Farming vs. Chadwick; 6 Pick. 179, Brinley vs. Kupfer; 2 D. & E. 479, Foster vs. Alanson. No settlement of the partnership claims has been made in this case. The assignment to Burley is in fact a mere power-of-attorney, authorizing him to collect the partnership demands and apply them in payment of the partnership debts, while he was to hold the balance to be adjusted by the partners.

The partner who took upon himself the business of collection, covenanted to account for all the property received: to pay the debts, and to pay the defendant his share of the profits on a final settlement, if the firm should be found to have realized any profits for division. The partnership business as betwixt the partners was left entirely unsettled ; and in case of any difficulty in the settlement betwixt them, their claims were to be submitted to the arbitration of individuals designated in the articles of dissolution.

There is no pretence then for maintaining this suit, on the ground of any adjusted balance made betwixt the parties. It is a mere naked suit brought by a firm against a partner for an indebtedness to the firm. The suit is, therefore, felo de se, the parties on either side upon the record are flic same. Should any difficulties arise in the final settlement of the concerns of these partners, there is a plain remedy in equity, where the objections which occur here would not exist. Suit dismissed without costs.