Fargo v. Saunders

¶1So much of the account filed in set-off as is now objected to by the plaintiff is a claim of the defendant against the Farmers’ Company, a voluntary association, of which he is a member. The affairs of the company are in the course of settlement, it having been determined by the partners to bring its business to a close. But this has not yet been fully accomplished; there still remain claims to be collected and debts due from them to be paid. One partner cannot maintain an action against a company of which he is a member, to recover a claim due from the partnership to himself, until all its affairs have been fully adjusted, and nothing remains but to make a final distribution of its effects among those entitled to receive them, in proportion to their respective shares or interest in the concern. Williams v. Henshaw, 12 Pick. 378. There is nothing to distinguish the claim of the defendant in the present case, so as to take it from the operation of the general rule. He cannot, therefore, avail himself of it in set-off against, or in defence of, the present action, because a claim can be applied to such purpose in those cases only in which the party to whom it is due could otherwise maintain an action for its recovery. The ruling of the court was correct, and the exceptions thereto must be overrul >d, and judgment entered on the verdict.