Casey v. Carver

Mr. Chief Justice Walker delivered the opinion of the Court:

This was an action of assumpsit, brought by Benjamin F. Carver, Codington Billings and Courtland G. Babcock, for the use of Billings, in the Circuit Court of Cook county, against Samuel K. Casey and Lorenzo P. Sanger. The declaration contained the usual common counts. It appears, that the action was brought to recover a balance claimed to be due on a banker’s account from appellants to appellees. It was claimed by the defense, on the trial below, that they had fully settled and paid the account,— that the settlement had been made by Carver, one of the partners; and the evidence seems to sustain the assertion. But, on the other hand, it is claimed that Carver allowed appellants credit for sums of money which-he individually owed them, and that the credits were not allowed by the other partners, and that they never ratified or assented to the settlement,— that the items of Carver’s individual indebtedness composed a large portion of the credits thus allowed them.

It appears from the evidence, after a careful examination, that Carver and appellants’ book-keeper examined the accounts, and the former agreed to allow appellants certain credits, which they claimed against the firm of appellees; but the credits were never given. In this respect this case differs from the Marine Company of Chicago v. Carver, tried at the present term, (ante, 12), as in that case the credits were entered, and the presumption raised that the other partners had ratified their entry. And there is no evidence that the other partners were aware that appellants even claimed such credits, and, not having been entered upon the books of appellees’ firm, they were not chargeable with notice, and no ratification can be inferred, if they were for Carver’s individual indebtedness.

We think the evidence warrants the conclusion that the demand claimed by appellants was not against appellees but against Carver. If such was the fact, Carver had no power to -allow it as a credit on indebtedness due to his firm without the assent of his partners, and if he did do so they would not be bound, unless they subsequently ratified the credit. Such assent might be proved' by positive or circumstantial evidence. But such assent or ratification could not be inferred, simply from the fact that Carver agreed to allow the amount. Had it appeared that his partners knew of the settlement, or knew or had reason to suppose that appellants were relying upon the settlement, they could not be heard to repudiate the settlement unless they had given notice, that they did not sanction the settlement, at the earliest practicable period, after they learned the facts. To permit them, after acquiescing in the settlement for any great length of time after having notice, to repudiate it, would be a fraud on the creditor of the individual partner.

The whole of appellees’ account, except two or three items, was proved by checks drawn on them by appellants, and there seems to be no question that they received the money. And as to these items, they were embraced in the account rendered to appellants, and while objecting to other items, no exceptions were taken to these. And they seem to have been allowed in the settlement with Carver. From this evidence, the court was warranted in allowing them in the judgment which was rendered.

We also think the evidence shows that the credits claimed by appellants, and in dispute, was the individual indebtedness of Carver. Appellant’s clerk says he kept Carver’s account, in the account of appellees with appellants, and that Carver telegraphed, asking why appellants did not draw on him and not on his firm. And, we think, that it is manifest that he owed and is still owing appellants, and that it was this indebtedness that was to have been credited on appellants’ account when the settlement was made. At any rate, the evidence does not seem to require that the finding should be disturbed.

It is urged, that the court erred in allowing interest on the account. It is true, that no contract to pay interest was proved, or any custom or usage of the parties requiring it, but the account was presented with the balance struck, which amounted to a demand of payment. Still, if that were not so, it was for money lent. It is true, that it is in the shape of an account but it was for money alone, and this entitled appellees to recover interest.

The judgment of the court below is affirmed.

Judgment affirmed.