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Bank of British North Am. v. Delafield, 126 N. Y., 410.

Thus Judge ALLEN, in Crater v. Bininger (45 N. Y., 545 at 548), says that an action will not lie by one member of a partnership against another upon an implied promise, and if the plaintiff had paid the demands against the firm he could not have maintained an action against his associates upon the implied promise to repay him. In such case the promise implied is to repay the amount that may be found due after an accounting. But one partner can maintain an action against his copartner upon an express promise, although connected with partnership business. He refers to Gridley v. Dole (4 N. Y., 486), which was a case where one of two partners, after a dissolution, advanced money to the other upon his promissory note, to pay partnership debts, the assets of the late firm being in the hands of the member receiving the money. It was held he could recover upon this express obligation to repay, but if no such obligation had been taken, it would have been the case of one partner advancing money to pay, or paying demands against the firm, and in such case he could not recover back the whole or any part of the money in an action against his copartners, because the action 9 would be upon an implied promise, and that implied promise was only that the other partners would pay what was due him after an accounting had been taken to ascertain the state of the partnership matters, and the balance, if any, that might be due him. Where, however, the facts proved raise an implied promise to repay upon demand the very sum which has been loaned, I think an action can be maintained thereon just as well as upon an express promise to do the very thing which the law implies without such express promise.


But be that as it may, we have here the further facts that the indebtedness from the defendant to the firm was assigned by it to the plaintiff, and upon the trial an examination into the firm accounts was had so far as to show the defendant indebted to the firm in a sum largely in excess of the money sued for by the plaintiff. That an assignee could recover upon the indebtedness arising from the loan, after proof of the state of the partnership accounts, and that defendant was indebted to it in greater sum than the amount assigned, can admit of no doubt. In our union of legal and equitable remedies in the same tribunal, and after

Bank of British North Am. v. Delafield, 126 N. Y., 410.

what may be termed an examination in the nature of an account- 11 ing has been had, it is a matter of no importance that it was carried on in what would be termed an action at law. There is no claim now made that there has been but a partial accounting or that in consequence of such partial accounting the defendant has been found indebted to the firm in a greater sum than would have appeared if a full and complete accounting had been had, and greater than will appear when a full and complete accounting comes to be had between the members of the firm in an action wherein they are all parties and where the judgment will 12 bind them all. We think the plaintiff showed enough to maintain its action in this respect.

These views would lead to an affirmance of the judgment were it not for the erroneous admission of one piece of evidence which we see no available answer to.

[After discussing the question of evidence.]

Judgment reversed and a new trial ordered, for error in the admission of evidence.

NOTE.-In Esdaile v. Wuytack, 25 Abb. N. C., 474, Held, error to dis- 13 miss-on the ground that an action at law would not lie-a complaint alleging a dissolution by mutual consent of a former partnership, between plaintiff and defendant, an agreement that all partnership liabilities should be borne and paid equally, and that plaintiff had paid all the partnership liabilities; and seeking judgment against the defendant for his half thereof. The court held that the action did not involve investigation or settlement of the affairs of the partnership.



Hoboken Beef Co. v. Loeffel, 23 Abb. N. C., 93.


New York Supreme Court, General Term, 1889.

[Reported in 23 Abb. N. C., 93.]

1. Arrest may be ordered, under Code Civ. Pro., § 549, as amended in 1886, in an action on contract, if a fraud such as is mentioned in the statute be also alleged, although not with damage.

2. The fact that the pleader, after stating a cause of action on contract, adds, in compliance with that provision, allegations showing a fraud which is ground for arrest, does not change the nature of the cause of action, but will avail to sustain the arrest.*

Appeal from an order denying a motion to vacate an arrest.

VAN BRUNT, P.J. The appellant in his points has stated the ground of the motion to set aside the order of arrest obtained herein to be that the complaint states a cause of action on contract and does not allege fraud with damage.


This question is one of much practical importance, and has hung ir doubt in the minds of many of the profession since the recent amendment requiring the complaint to state the facts constituting the ground of arrest. The decision in the text seems clearly to accord with the words of the statute; and it will be found to accord also with justice to suitors and the convenience of the profession, when the results which would follow any other decision are traced out, as indicated in 2 Abb. New Pr. & F., 355, note.

A similar principle is applied where a plaintiff has occasion to allege a fraud of defendant, not for the purpose of obtaining arrest, but by way of anticipating and avoiding a bar which defendant could otherwise rely on; as where the defendant induced plaintiff to take notes on time, by false representation, and plaintiff sues without delay, and alleges the false representations as entitling him to do so. Here his action is on contract solely, notwithstanding he alleges and must prove the fraud. Wiegand v. Sichel, 3 4 Abb. Ct. App. Dec., 592; aff'g 34 Barb., 84; Roth v. Palmer, 27 Barb., 652 and cases cited. So where he sues for money paid by him under an executory contract, and alleges fraud as the ground on which he is entitled to rescind and to recover on the implied contract to repay. In all such cases his cause of action is on contract, although he may be bound to prove the fraud in order to recover.

So also where he sues for price of goods and alleges breach of the buyer's stipulation to give notes, as a reason for not waiting the expiration of the term of credit, his action is not thereby made one for the breach of that stipulation, but is still only an action for the price of the goods. See Lee 2. Decker, 6 Abb. Pr. N. S., 392; Wills v. Simmonds, 8 Hun, 189.

Hoboken Beef Co. v. Loeffel, 23 Abb. N. C., 93.

In view of this statement of the ground upon which the 4 appellant founds his motion, it is not at all necessary to consider the allegations contained in the complaint, because he concedes that if an order of arrest may be obtained in an action upon contract, which does not allege fraud with damage, this appeal is not well taken.

It seems to us that a very brief consideration of section 549 of the Code disposes of the objection. That section provides that the defendant may be arrested in an action brought for either of the following causes, and subdivision 4 is as follows:

"In an action upon contract express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability."


An order of arrest may issue, therefore, in actions on contract where the cause of action is simply on contract; but in such cases it is necessary that the complaint should contain something more, namely, an allegation that in incurring the liability on the contract which was sued for the defendant was guilty of a fraud. The action need not be to recover damages because of the fraud. 6 If the defendant was guilty of fraud in incurring the liability on contract, which forms the subject of the action, and it is so alleged in the complaint, then the right to arrest follows.

In the case at bar, the complaint sets up a cause of action for goods sold and delivered, and it also contains allegations that in order to induce the plaintiff to make such sale, and with intent to defraud it of the goods so sold, the defendant falsely and fraudulently represented to the plaintiff that he owned certain real estate in the county of Hudson, in the state of New Jersey, and 7 that said real estate was free and unincumbered, and that the plaintiff relying upon said representations, and being deceived thereby, was induced to sell to the defendant the goods therein before mentioned; that said representations were false and untrue, and known by defendant to be false and untrue; that the defendant did not own said real estate at the time of making the representations, nor did he own any other real estate in said county. These were complete and perfect allegations of fraud, and the fact that the complaint does not seek or allege damages by reason

Blank v. Hartshorn, 37 Hun, 101.

8 of the fraud, does not in any way interfere with the right of arrest; because in an action upon contract, where the complaint alleges that the defendant was guilty of a fraud in incurring the liability, an order of arrest may issue. These are the allegations in this complaint. The action is upon contract, and it is alleged that the defendant fraudulently and for the purpose of deceiving the plaintiff, made certain allegations in regard to his responsibility which were false. This clearly constituted a fraud, and thereby brought the complaint within the provisions of the Code; 9 and the order should be affirmed, with $10 costs and disbursements.

BARTLETT, J., concurred.

Ordered accordingly.


New York Supreme Court, Fifth Department, 1885.

[Reported in 37 Hun, 101.]

1. In an action for labor and services alleged to have been performed under a special contract at an agreed price, if it appears that, from the circumstances of the case, it is doubtful whether the alleged contract can be satisfactorily established, the spirit of the Code does not prevent the adding of a count for the same labor and services upon a quantum meruit. For where it can be seen that the statement of each cause of action is probably needful in order to prevent a failure of justice in consequence of a variance between the pleading and the proof, such statement, provided it be plain and concise, should not be regarded as "unnecessary repetition," within the meaning of the Code.

2. So, where there is reasonable doubt upon the facts whether plaintiff should claim as original contractor or as assignee of one who was privy to the transaction, he may, after alleging a cause of action on a contract with himself, allege the same contract as made with the third person and assigned to him.

1 Appeal from an order.

Plaintiff having a claim to compensation from the defendants for pasturage, etc., of cattle, but, being uncertain as to some details of the transaction to be developed by the evidence, stated three causes of action in his complaint.

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