OZEAS v. JOHNSON, 4 U.S. 434 (1806)

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U.S. Supreme Court

OZEAS v. JOHNSON, 4 U.S. 434 (1806)

4 U.S. 434 (Dall.)

Johnson, Administrator of Foulke.

Supreme Court of Pennsylvania.

December Term, 1806

CASE for money had and received, &c. The plaintiff, and Foulke, the intestate, had been jointly concerned in a mercantile adventure from Philadelphia to New-Orleans; but there was no evidence, at the trial, that they had ever settled their accounts; and this action was brought to recover a balance claimed by the plaintiff. The jury, accordingly, gave a verdict, in his favour, for 320 dollars, subject to the opinion of the Court, on a point reserved; to wit, whether the plaintiff, being a partner of Foulke's, and equally concerned in the adventure, could recover in the present form of action?

On arguing the point reserved, S. Levy, for the plaintiff, urged that the action of account render was almost obsolete; that the action for money had and received, was in nature of a bill in equity; that, having no distinct Court of equity, equity had become, in effect, a part of the common law of Pennsylvania, administered through her common law Courts; and that the sense of the legislature, on the subject, was manifested in the 6th section of the act of the 1st of March 1806 (7 vol. p. 562.) which provides, 'that in all cases where any suit has been brought in any Court of record within this commonwealth, the same shall

Page 4 U.S. 434, 435

not be set aside for informality, if it appear, that the process has issued in the name of the commonwealth, against the defendant, for monies owing, or due, &c.' Wats. on Part. 221. 2 Vez. 239. 1 Bac. Abr. 31. 36, 37. Cowp. 795. 1 Dall. Rep. 428. 211.

Hopkinson, for the defendant, admitted, that if a partnership is dissolved, and the partnership accounts settled, the creditor partner may bring an action on the case for the balance: Wats. on Part. 221. 226. but he contended, that as this was the case of a special partnership, in which no account of the joint adventure had been settled, an action of assumpsit could not be sustained. Wats. 116. 2 T. Rep. 476. 478, 479. 483. 2 Caines, 293. 296. Lamerlen v. Caze, in the Circuit Court of the United States, April T. 1806.

The opinion of the Court was delivered by the Chief Justice, on the 1st of January 1807, who, having stated the f cts and point reserved, proceeded as follows:


It was my wish to support the action, if possible; because the jury have decided on the merits of the cause. But, upon a deliberate consideration of the nature of the action, and the authorities which have been cited, I am convinced that the plaintiff cannot recover. Money received by one partner, during the partnership, is not received for the use of either, but for the use of both, the partners. All that either partner is entitled to, is a moiety of what remains, after all the partnership debts are paid; and the proper remedy for one partner against the other, to obtain a settlement and payment, is an action of account render. In short, no case has been cited by the plaintiff's counsel, to show that an action, like the present, can be maintained, unless the partners have settled their account, and struck the balance.

It is, then, of importance to the administration of justice, that the forms of action, which originate in good sense, and public convenience, should not be confounded. The defendant has a right and an interest, to insist upon the preservation of the proper form of action, to enforce his partnership contract against him, of which this Court possesses no power to deprive him. It is, indeed, most convenient, that partnership accounts should be settled before auditors. It would often be extremely difficult, sometimes it would be impracticable, to settle them by a jury.

For these reasons, we think, that plaintiff cannot maintain the present action.

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