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The admission then was by one partner (taking it for granted
that the defendants had been partners), after the dissolution of
the copartnership, and after suit brought. I am aware that in
the case of Jones v. Moore, 5 Binn. 573, it has been decided,
that an admission, which takes a case out of the Act of Limita-
tions, does not operate to revive the old debt; but is the evi-
dence of a new promise, of which the old debt is the considera-
tion ; but without stopping to inquire whether such admission,
after suit brought, is sufficient in an ordinary case, we proceed to
consider the other question involved. Is such admission, made by
one partner at any time, after*the dissolution of the firm, effectual
for this purpose? This part of the case has in fact been recently
decided in two cases, which I will mention. The law is well set-
tled, that after the dissolution of a partnership, the partners cease
to have any power to make a contract in any way binding on each
other. The dissolution puts an end to the authority, and operates
as a revocation of all power to create new contracts. This prin-
ciple, taken in connection with that already referred to, that the
admission is evidence of a new promise of which the original debt
is only the consideration, brings us to the conclusion, at which the
Supreme Court has already arrived, after full argument, that the
acknowledgment by a partner, after the dissolution of the copart-
nership, will not take the debt out of the Act of Limitations, so as
to make the copartners liable. This point was so decided in
Philadelphia at the December Term 1827, of this court, in a case
in which his honor, Justice Rogers, delivered the opinion of the
court, which will be reported. It was also, a short time afterwards,
so decided by the Supreme Court of the United States, at their
January Term 1828, in the case above cited, of Bell v. Morrison et
al., reported in 1 Pet. 3ol, 373, where, in the very able and elabo-
rate opinion of that court, delivered by Mr. Justice Story, it is said,
" that after the dissolution of a partnership, no partner can create



Oct. 1829.] OF PENNSYLVANIA. 139

[Searight v. Craighead.]

a cause of action against the other partners except by a new author-
ity communicated to him for that purpose. It is wholly immaterial
what is the consideration which is to raise such cause of action ;
whether it be a supposed pre-existing debt of the partnership or any
auxiliary consideration which might prove beneficial to them. Un-
less adopted by them, they are not bound by it. When the Statute
of Limitations has once run against a debt the cause of action against
the partnership is gone. The acknowledgment, if it is to operate
at all, is to create a new cause of action, to revive a debt which is
extinct ; and thus to give an action which has its life from the new
promise implied by law from such an acknowledgment, and operat-
ing and limited by its purport. It is then, in its essence, the cre-
ation of a new right, and not the enforcement of an old one. We
think that the power to create such a right does not exist, after the
dissolution of the partnership, in any partner." After this, to say
more on this subject, or to run through a bead-roll of cases, for in-
formation, when the case itself has been so recently decided by two
of the highest tribunals, would really be an idle parade, or waste of
time. It is only necessary to add that there is no error in the de-
cision of the Court of Common Pleas, and the judgment is therefore
affirmed.

Judgment affirmed.

Referred to, 2 P. & W. 305 ; 5 Norris 506, s. c. 6 W. N. C. 295.
Doctrine followed and distinguished, Kaufl'inan v. Fisher et ux., 3 Gr. 302.
Followed, 10 II. 1G2; 12 Wr. 253 ; 21 Smith 212.



140 SUPREME COURT \_Chambersburg



Brady et al. against Colhoun et al.

IN ERROR.

Campbell, in 1805, bought of "W. 5000 acres of land, at $4 per acre. The
purchase was at a credit of eight years, with interest at three per cent., after
which the principal was to be paid at three, six and nine years, reserving six
per cent, on unpaid balances. By settlement made in 1819, Campbell had
paid the interest to W. up to that time, and ^4429. 42, on account of prin-
cipal. In an action of assumpsit, brought in 1827, after Campbell's death,
against the administrators of Colhoun, for money so paid to W., in which the
evidence to charge the defendants consisted of a series of letters written by
Colhoun to Campbell, from JiSO") to 1814, from which it appeared that Col-
houn had been let into a participation in Campbell's purchase : Held, that
six letters from Campbell to Colhoun, in a period of as many years from
1S14 to 1S20, in which there was no allusion to the subject, were evidence
of the rescission of the agreement between Campbell and Colhoun.

The liability of Colhoun to contribute for the payments of Campbell whether
more or less than his proportional part, would depend on whether the
parties had agreed to apportion the profit or loss, which was a fact for the



Ther.e may be a partnership to trade in land, and it may, as in any other
case, be limited to purchasing only, the profit and loss being divisible as
stock; but this relation does not necessarily or naturally arise from the bare
circumstance of a joint purchase.

Joint purchasers, without an agreement of partnership, would not be
entitled to the remedies, nor subject to the responsibilities of partners.

If Campbell, a* a joint purchaser, paid all the interest as it became due, a
right of action fora moiety of each payment accrued instantly to him against
Colhoun, which would be barred by the Statute of Limitations when six years
had run before suit brought.

The court below charged the jury, that if the contract were not rescinded
between Campbell and Colhoun, the former could recover for interest paid.
The jury found & general verdict for defendants. Hcl<I, that it appeared that
the jury went on a distinct ground of fact. " the rescission of the. contract"
and if error had been committed in the charge as to the principal, this court
would not reverse on that ground, as it was without prejudice to the party.

WRIT of error to a special Court of Common Pleas of Franklin
county.

This suit was an action of indebitatus assumpsit, brought by the
plaintiffs for money paid, laid out and expended by the plaintiff's
testator for the defendant's intestate.

Parker Campbell, the testator, on the 25th day of May 1805,
contracted with the Washington College for the purchase of five
thousand acres of land, in JJeaver county, for which he agreed to
pay 4 per acre. By the agreement, interest at three per cent, per



Oct. 1829.] OF PENNSYLVANIA. 141

[Brady v. Colhoun.]

annum on the purchase-money, was to be paid for eight years ; when
so much of it as remained unpaid was to bear interest at six per cent.,
the interest to be paid semi-annually, and the principal was to be
paid in equal payments, at intervals of three years, after the expi-
ration of eight years.

No deed was executed by the college to Mr. Campbell, but the
college retained the legal title as a security for the payment of the
purchase-money. On the 1st of October 1819, it appeared by a
settlement then had with the college, that Mr. Campbell had paid
the interest up to that time, amounting to $15,000, and the sum of
$4429.42, which was credited on account of the principal by the
college.

In the year 1824 Mr. Campbell, having failed to make further
payments, the college brought ejectments to recover the lands sold,
obtained judgments by arbitration, and possession under them. The
whole negotiation with the college was in the name of Mr. Camp-
bell, and Mr. Colhoun, who was the father-in-law of Mr. Campbell,
was not known in the contract by the college ; but to prove his con-
nection with it, and make him liable for a portion of the purchase-
money paid, letters from him to Mr. Campbell 1 , dated in 1805, 1806,
1807, 1813, and on the 8th of June 1814, were given in evidence,
in which Mr. Colhoun admitted that he was interested in the pur-
chase ; spoke of Mr. Campbell calling on Mr. Reed for one-half
of the interest on the purchase-money ; called it his part of the in-
terest, and informed Mr. Campbell that he had a number of adver-
tisements printed for the sale of " our academy lands," and would
distribute them.

The defendants, who conceded that at one time there had been
a contract of some sort between the parties, for the purchase of
these lands, relied on evidence to show that it was abandoned, and
with this view offered in evidence six letters, dated respectively the
19th September 1814, 5th September 1815, llth December 1810,
5th November 1819, and 27th May 1820, from Mr. Campbell to
Mr. Colhoun, and in which no allusion was made to the purchase
of the college lands. To this evidence the plaintiffs objected ; but
it was received by the court, who signed a bill of exceptions which
was assigned for error here.

The circumstances of the parties, the embarrassments of Camp-
bell, in part growing out of this contract with the college, and the
affluence of Colhoun were relied upon by the defendants to fortify
the defence on this point, and much evidence was given, which it is
not necessary to the proper understanding of the ease here to detail.

Parker Campbell survived Mr. Colhoun some years, and died in
July 1824 ; and this suit was brought on the Gth February 1827.

The plaintiff's counsel, among other points, requested the court
to charge the jury ''that John Colhoun's administrators and estate



142 SUPREME COURT [Chambersburg

[Brady v. Colhoun.]

are liable to Parker Campbell's executors for the one-half of all
money he may have paid on the contract with the Washington
academy ; and are not confined, if otherwise entitled to recover, to
the excess of payment beyond the half that Parker Campbell was
bound to pay."

On this point the court charged the jury, " that three per cent,
per annum became due and was payable semi-annually, and after
eight years six per cent. The college had a right to demand this
sum at the periods stipulated. If there was a contract between
Messrs. Campbell and Colhoun, by which each had an equal inter-
est, and each was bound to make equal payments under the con-
tract with the college, then any sum paid from time to time in
discharge of the accruing interest, by any one of the parties beyond
his proportion, was paid for the other, and the law would raise a
promise to repay, but any sum paid by either, beyond the interest,
that is in discharge of the principal, would be -a payment on his own
account, provided such payment did not exceed his proportion of
the purchase-money ; and being a payment on his own account of
his own debt, the law would raise no promise on the part of the
other to repay it."

This part of the charge was assigned for error here.

The court, in answer to a point put by the defendant's counsel,
as to the Statute of Limitations, which was relied on in defence,
charged the jury, that " if Messrs. Campbell and Colhoun had a
joint interest in the purchase, and Mr. Campbell acted as the agent,
and in trust for Mr. Colhoun, and went on from time to time pay-
ing his money on the contract, as contended by the plaintiffs, in
contemplation of carrying the contract into effect, and in this way
paid more than his proportion of the instalments annually due,
being under a legal obligation to do so, he would also have the im-
plied assent of Mr. Colhoun. The contract was a continuing one
the trust was to exist throughout the whole concern, and when
the contract should be consummated the separate rights of each
would be ascertained. While it continued, each might act for the
other intermediate settlements were not contemplated. It would,
therefore, under such circumstances, be in fraud of the Statute of
Limitations to account each payment a separate act, and liable to
its operation.

The verdict was for the defendants.

Washington, for the plaintiff in error. 1. As to the bill of ex-
ceptions : The six letters dated after 1814 (admitted in evidence),
showed no connection with or allusion to the contract in question,
and were relied on to show that it was abandoned. They were
wholly irrelevant, and testimony of a dangerous character. It
is put in the power of a party to select such as suited his own pur-



Oct. 1829.] OF PENNSYLVANIA. 143

[Brady v. Colhoun.]

pose, and suppress the residue of the correspondence, the whole of
which he cannot be forced to exhibit, and any part of which he may
destroy.

2. As the charge of the court. Colhoun was not a contracting
party with the college, and to it he never owed any liability ; his
liability was to Campbell.

If the court below were right, then Campbell could not have
called on Colhoun to pay till he had paid his full half, which, as the
principal was not all to be paid for seventeen years, Campbell could
not have recourse to Colhoun until that time. This view is incon-
sistent with the letters of Colhoun and the nature of the trans-
action. He recognised his liability to pay his portion of the money
as the contract progressed.

But suppose one-half of the purchase-money to have been paid,
and the college had taken back but half the land, Colhoun could
not recover any part of the land, because the remedy must be recip-
rocal ; and if Campbell cannot sue when he has paid but the one-
half of the purchase-money, Colhoun could not, in the case sup-
posed, recover any portion of the land. Here the contract with
the college was rescinded, and the liabilities of the parties to each
other for money paid on the contract, while it subsisted, attached.

In the case of co-sureties, the one can only recover for what he
pays beyond his proportion, because if the payment be less, the
liability of the co-surety remains ; but if the principal contract is
at an end, then the surety can call on his co-surety for contribution,
although he has paid less than his proportion of the entire sum of
the contract.

Cr. Chambers and McCulloh, for the defendants in error. 1.
The case on the part of the plaintiffs was exceedingly obscure. The
precise terms and nature of the contract upon which they relied did
not appear. They inferred its existence by inference from the
expressions used in letters prior to the year 1814. The defend-
ants admitting that a contract of some sort, in reference to these
college lands, had once existed, relied on many circumstances to
establish the fact that it had been abandoned. The letters, dated
after that period, from Mr. Campbell to Mr. Colhoun, proved that
a correspondence had been continued between them, and that Mr.
Campbell did not in it refer to this contract and insist on the
liability of Mr. Colhoun to him, although the contract then became
more interesting, as the rate of interest then increased, and Mr.
Campbell after that time became embarrassed. In a case of circum-
stances, which, on the part of the plaintiff, as well on the part
of the defendant this was, the existence of this correspondence,
and the silence of Mr. Campbell, as regards the contract, were
powerful circumstances to show that the contract no longer sub-
sisted. But if these letters proved any thing, however slight, in
reference to the defence, it was proper to permit them to go to the



144 SUPREME COURT {Chambersburg

[Brady v. Colhoun.]

jury, particularly as both parties were dead, and the transaction
involved was an ancient one. It was for the jury to say if any
letters had been withheld.

2. The jury gave a general verdict for the defendants, which
could only be on the ground that the contract alleged had been
rescinded.

And if the court did err in their charge to the jury, on this
point, it was without any prejudice to the plaintiff, as the jury
decided on another ground.

This is not the case where the court cannot ascertain the point
upon which the verdict was given ; here it may be readily separated
and distinctly ascertained.

The nature of the contract was wholly a matter of conjecture.

If it were between Campbell and Colhoun, after Campbell
bought, it was a sale to Colhoun by Campbell, and should have
been declared upon by the plaintiff as such. And in case the land
had been lost by the default of Colhoun, if Campbell had paid his
full proportion of the purchase-money, his remedy would have been
on the specific contract, and a general action of assumpsit for money
paid to the use of Colhoun, is not the remedy.

The action here is founded on the idea that the purchase had
been made by Campbell for both.

This difficulty as to the nature of the contract lays at the door
of the plaintiff, who lay by so long without attempting to enforce
any liability on the defendant, and although as respects a creditor
it is enough to know and establish a partnership by reputation, yet
as between the parties, on a question of liability, one partner must
establish the contract distinctly.

The charge of the court below was. that the plaintiff might call
on the defendant for contribution for a payment of more than his
proportion of the interest.

This would stop in 1813, when the principal was due ; and any
payment by the plaintiff after that was less than his proportion of
principal and interest. This he was bound to pay, and he could
therefore cast no liability on the defendant by paying this.

As between partners and cosureties the law is well settled. One
partner or surety cannot sustain an action against his copartner or
co-surety for the payment of his proportion of the debt. It is for
the excess beyond this only that a right of action exists : Gow
113-14; 1 Maddox Ch. 191 ; Ex parte Crisp, 1 Atk. 134-5; Sow-
yer r. Lyon, 10 Johns. R. 32.

But here the contract was not rescinded by the recoveries in the
ejectments instituted by the college, nor are the defendants affected
by any negotiation with the college, which is without their privity.
The vendor, who obtains possession by ejectment for default of his
vendee, does not hold as of his former estate, nor is the contract
rescinded by such recovery : Youst v. Martin, 3 S. & II. 432 ; Mar-



Oct. 1829.] OF PENNSYLVANIA. 145

[Brady r. Colhoun.]

lin v. "VVillink, 7 Id. 297. The vendor holds possession as a security
in such case, and as to the vendee, chancery relieves against the
lapse of time, especially where a large part of the purchase-money
has been paid. The question as to what time the vendee shall be
allowed, after the vendor has taken possession on his default, to
redeem, has not been settled ; but it is clear that in such case the
contract is not rescinded.

Crawford, in reply. The contract between Colhoun and Camp-
bell, upon which we based the liability of the former was involved
in no doubt or obscurity. It was fully made out by the letters of
Mr. Colhoun, which the plaintiffs gave in evidence, and which, con-
taining admissions against his interest, are the strongest possible
evidence on this point.

The letters, which did not refer to this transaction, but to the
affairs of the family, ought not to have been received in evidence.

The presumption of abandonment of the contract would have
been as well sustained by the fact of no letters being given in evi-
dence, as by these letters.'" It is because they contain no evidence
that they were received. The law of evidence would not permit
conversation between parties, in which nothing was said about the
transaction in issue to be proved.

The evidence here was of no better character, and their introduc-
tion brought before the jury little extrinsic circumstances which
ought not to have reached the jury at all.

It is not only liable to these objections, but those already urged
on account of the danger of tolerating this kind of evidence.

2. It is against all equity that Campbell, in a case of this sort,
should not have a right to recover a proportion of any sum which
he had paid. If it be conceded that he was entitled to recover for
interest paid, as the court below charged the jury, on the same prin-
ciple, he should be entitled for his payment of principal.

Campbell was the only party known to the college in the con-
tract, so that one-half of every dollar paid by him was for the use
of Colhoun, who was thus unknown to the vendor.

Where one of two sureties pays the one-third of the whole debt,
and the principal pays the balance, the surety could most certainly
call on his cosurety for contribution. So if one of two partners,
pays one-fourth of a debt due by the firm, upon a compromise of
the whole demand, it is equally clear that he may have contribution
from his copartner. It is only where the liability remains that the
surety or partner cannot be reimbursed for any payment less than
the half of the debt ; and when the books speak of half of the
whole debt, they mean the half of the whole debt dcnmn<l<tf>l<'. The
case in 10 Johns, went upon a different principle. There the liability
remained, and the defendant's land was subjected to it. Now. by
the recovery of the land in ejectment bv the college, all the right

1 P. & V\". 10



146 SUPREME COURT [Ckambenlurg

[Brady v. Colhoun.]

of the college to call on Campbell or Colhoun is gone ; although it
be true that the vendor in such case holds as a trustee for the ven-
dee, who may redeem.

It is impossible to ascertain on what point the jury found or that
they were influenced in their finding by the charge of the court on
this point. When the court told the jury that as t9 the principal
we had no right to recover, it may have induced the jury to believe
that we had no right to recover on account of interest ; and the
court will not sustain the judgment upon a conjecture that the jury
found on another point, because by possibility they may have so
found.

The opinion of the court was delivered by

GIBSON, C. J. The evidence to charge the defendants consisted
of a series of letters written by Colhoun, from which it would seem
he had been let into some sort of participation in Campbell's pur-
chase. All allusion to the subject, however, having been discon-
tinued on the part of Colhoun for a period of thirteen years, the
defendants offered as additional evidence of the rescission of their
agreement, six letters written by Campbell in a period of as many
years, in which, also, there is no allusion to the subject, although it
had at one time been a leading topic of their correspondence. We
cannot admit that these letters were irrelevant, because the writer
was silent on the subject of the agreement; on the contrary, they
were relevant for that very reason. In connection with the lapse
of thirteen years of silence on the part of Colhoun, the silence of
Campbell for at least six, was a powerful circumstance ; and were
the objection of irrelevancy to prevail here, it must necessarily pre-
vent a party, under any circumstances, from being affected by
silence, which, though often more significant than words, has no
positive allusion to anything. Neither do we admit the force
attempted to be given to the objection that the defendants may have
suppressed all but such parts of the correspondence as suited their
purpose. As to that the plaintiffs had a right to examine them on
oath ; and this, I understand, though tendered, was declined.

In respect to the charge, it seems to me that both parties put
to the court as a conclusion of law, what was properly a matter for
the jury the supposed liability of the defendants to contribution
for the payments of Campbell whether more or less than his propor-
tional part. It is obvious that this depended, in the first instance,
on whether the parties had agreed to apportion the profit or loss ;
which is of the essence of partn^rx/iip. Although it be by no
means common, there may be a partnership to trade in land ; and
it may, as in any other case, be limited to purchasing only, the
profit or loss being divisible as stock ; but this relation does not
necessarily or even naturally, arise from the bare circumstance of
the parties having purchased jointly. The existence of partner-



Oct. 1829.] OF PENNSYLVANIA. 147

[Brady v. Oolhoun.]

ship as deducible from facts and circumstances, is not for the court
but the jury ; and in submitting propositions supposed to result
from the evidence as conclusions of law, the plaintiffs abandoned
the notion of a partnership having existed in fact, and went to the
court on the supposed liability of the defendants as representing a
joint purchaser. Then, to put the case as favorably to them in
point of fact as it will bear, we must suppose the parties had agreed



Online LibraryWilliam RawleReports of cases argued and adjudged in the Supreme Court of Pennsylvania (Volume 1) → online text (page 17 of 62)