Libby v. Robinson

The defendant and another, law partners, were indebted to the plaintiff, a deputy sheriff, for official services performed by him for their firm. The bill became barred by *170the statute of limitations. The bar is attempted to be avoided by the plaintiff upon the following finding of facts : At some time during six years prior to the date of the writ in this case, the defendant and his partner had a settlement of their partnership accounts, when the defendant represented to his partner that he had paid the plaintiff’s bill, and they made a settlement on the basis of such payment. The ruling of the judge was that that act was equivalent to placing in the defendant’s hands at that time an amount of money for the plaintiff, which he can recover in this action of money had and received. We are unable to concur in the ruling. It would be pushing the principle of implied promise too far to give it such application. The cases cited fall short of supporting the conclusion contended for. They are instances where money was paid by one person to-another to be paid over to a third party. In the present case there was no assertion by the defendant that he would in the future pay the plaintiff, nor was any money placed in his hands for such purpose. He did not assume a new debt — he asserted that he had paid an old one, when he had not. He merely paid less to, or received more from, his partner, by reason of the misrepresentation, and he is still liable to his partner on account of it. He cannot be liable to pay the reserved sum to his partner and to the plaintiff also. Nor would the firm be released from the plaintiff’s claim, were the limitation question eliminated from the facts.

The case against the defendant cannot be stronger than it would have been had he given to his partner a bond of indemnity against the plaintiff’s claim; and that would establish no new liability to the plaintiff. We think that the settlement created no new contract or privity of contract between the parties.

Exceptions sustained.