Hudson and Another v Robinson
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1816 |
| Date | 23 January 1816 |
| Court | Court of the King's Bench |
English Reports Citation: 105 E.R. 910
IN THE COURT OF KING'S BENCH.
910 HUDSON V. ROBINSON 4M.&S.475. [475] hudson and another against eobinson. Tuesday, Jan. 23d, 1816. In assumpsit against one of several partners for not delivering goods, with a count for money had and received, to which defendant pleaded that the promises were made jointly with A. & B., it appeared that defendant being partner with A. and B. made the contract individually, though in the name of the partnership, and for the sale of partnership property, and that in fraud of his partners he received the money to his own use, though the bill drawn by him for the money was in the partnership name : Held that plaintiff might recover the money so received under the common count. And A. was held a competent witness for the plaintiff to prove that defendant was never authorised or employed by the partners to make the contract, and that he received the money to his own use. Assumpsit for the non-delivery of a quantity of copperas; also for money had and received. The defendant pleads in abatement, that the promises were made jointly with one Caleb Angus and one Cuthbert Brown, &c., and not by the defendant alone. Issue thereon. At the trial before Bayley J. at the last Northumberland Assizes, the plaintiffs failed in proving the special counts; but rested their case upon the count for money had and received, under the following circumstances : The defendant was partner with Angus and Brown in a copperas manufactory, and employed a broker to sell a quantity of copperas, being 20 tons, part of the partnership stock, telling him that he would deliver it as his own, if any objection should arise on the part of his partners. Before this time Angus had wholly conducted the partnership business, and the defendant had never interfered in it. The broker sold the copperas to the plaintiffs under a contract which was signed by the defendant for C. Angus and Co. The bill of parcels was [476] also made out by the defendant in the name of the firm, viz. " Bought of Angus and Co. 20 tons of green copperas, at 71.-1401." And a bill of exchange for the amount was drawn upon the plaintiffs by the defendant, signed by him, For C. Angus and Co., which the plaintiffs accepted, and paid when due. Only one ton of the copperas was ever delivered to the plaintiffs. The plaintiffs called Angus as a witness to prove that he had never authorized this bargain, nor had ever agreed to it; and that previously to this time he had exclusively conducted the sales of the concern himself, and the defendant had never been employed to make sales. That the money for this copperas had been received by the defendant alone, and had never been brought to account; and that the partnership accounts were still unliquidated, and in Chancery. It was objected, that Angus was an incompetent witness for this purpose; for this was in effect, by his own testimony, to rid himself of a joint liability with the defendant, for such would be the consequence of a verdict for the plaintiffs, in support of which he was called. Also, that this was not money had and received by the defendant alone to the plaintiffs' use, because it was the produce of the bill, which, like the bill itself, was partnership property. The learned Judge overruled the objection to the competency of Angus ; and held that this might be considered under the circumstances as money had and received by the defendant alone; and so there was a verdict for the plaintiffs. A rule nisi was obtained in the last term for setting the verdict aside on these grounds. Scarlett and Littledale shewed cause (a), and argued that Angus was a corn-effect of which is to charge the lands in the hands of the heir, but has proved a deed which does not bind the lands. And he cited Bristow v. Wright (a)1. [475] But per Lord Ellenborough C. J. This is surplusage as between these parties. It is immaterial to the present case both in consequence and effect, whether the defendant bound his heirs or not. And per Bayley J. The judgment would bind his heirs, whether he bound them by the deed or not. It was immaterial as between these parties whether the heirs were...
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