Peters v. Davis

A demand of copartners in trade belongs to the survivor to collect, notwithstanding an adjustment of all the concerns of the copartnership between him and the administrator of the deceased copartner, in which it was agreed that the proceeds of such demand should be equally divided between them.

Case for money had and received by the defendant, for the use of the plaintiff, in his capacity of administrator of-Davenport. A trial was had upon the general issue, before Parker, J., at the last November term in this county, and a verdict taken for the plaintiff, subject to the opinion of the Court upon the following facts, reported by the judge who sat in the trial. In 1798, a voyage was undertaken by the defendant and the house of Rawson &f Davenport. The vessel, and one half of the cargo, belonged to the defendant, and the other half of the cargo belonged to Rawson Davenport. The cargo was taken by the French, and converted to the public use; and the defendant, as agent for the whole concern, endeavored to obtain compensation from the French government. In February, 1802, Davenport died, and the plaintiff was duly appointed his administrator. In two or three years after Davenport's death, the plaintiff and Rawson ad justed all the concerns of the copartnership, except a demand against the British government, and the demand against the French govern ment, for the proceeds of the cargo above mentioned ; and it was agreed between them, that whatever should be recovered on account of these claims, should be equally divided between the plaintiff and Rawson. The company of Rawson &f Davenport was solvent until the death of Davenport, and Rawson continued solvent until August, 1805, when he absconded, being indebted to Davis more than the amount of the proceeds of half of the cargo as finally recovered. In 1806, under the Louisiana treaty, Davis received from the United States, on account and for the proceeds of the cargo taken by the French, as before mentioned, 3095 dollars 93 cents, the bills therefor being in the name of Davis and Rawson. * The verdict was taken for one fourth part of that [ * 258 J sum, being one half of the proceeds of the part of the cargo belonging to Rawson &/■ Davenport; the action being brought upon the ground, that, by the death of Davenport, and other circumstances in the case, there was such a severance of the property as entitléd the plaintiff to recover Davenport’s due proportion. There was no evidence of an assent on the part of the defendant to this severance, nor was there any formal notice of it to him, although it appeared, that about the time of the commencement of this suit, or since, he had been informed of the adjustment, which had taken place between the administrator and Rawson. If, upon these facts, the Court should be of opinion that this action could be maintained, it was agreed that judgment be rendered on the verdict; otherwise the plaintiff to become nonsuit.