Miguel v. Miguel

OLNEY, J.

This is an appeal by the defendant from a judgment against him for $414. The findings of the court are that the plaintiff and defendant were partners in the dairy business on September 23,

1911;

that on that day they dissolved partnership, the defendant purchasing the plaintiff’s interest for nine hundred dollars, which was to be paid when the indebtedness of the partnership, which was secured by a mortgage, should be paid by the defendant; that such indebtedness was not paid until June 15,

1917;

and that after allowing certain credits there remained due on the nine hundred dollars the sum of $414. At the trial, the only substantial points in dispute were, first, as to the agreed amount of the purchase price, the defendant claiming that it was six hundred dollars instead of nine hundred dollars; and, second, as to when the indebtedness of the partnership had been paid off, and the plaintiff’s cause of action had consequently accrued, the defendant claiming that the indebtedness had been paid in November, 1913, or nearly four years before the commencement of the action, so that the action was barred by the statute of limitations. There was plainly evidence to sustain the finding of the court as to the amount of the purchase price, but it is contended that the evidence

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does not sustain the finding as to the time of payment of the partnership debt.

The facts as to this latter point were that the indebtedness at the time of the dissolution of the partnership was owing to one Silva and was secured by a mortgage on the partnership property. In November, 1913, the defendant borrowed the necessary money from a bank upon his unsecured note and paid Silva, the mortgage to Silva of course being satisfied at the same time. It is this payment which the defendant claims was a payment of the partnership debt, so that the plaintiff’s cause of action then and there accrued. On the other hand, the debt to the bank, incurred by the defendant in substitution, so to speak, for the debt to Silva, was not paid until June, 1917, a few months before the commencement of the action, and the plaintiff claims that his cause of action did not accrue until then. That the payment to Silva was the payment of the partnership debt in the legal sense, of course, admits of no question. But the real question in the case is, What was the understanding or agreement of the parties? Was it that the defendant should pay the plaintiff as soon as the particular partnership obligation was discharged, or was it that the defendant should pay the plaintiff as soon as the burden, so to speak, of the partnership debt which he assumed, had been removed from the defendant