Ayer v. Ayer

| Vt. | Aug 15, 1868

The opinion of the court was delivered by

Barrett, J.

The plaintiffs were partners. L. D. Ayer suddenly disposed of all his property and of his interest in the firm except the accounts, and absconded from the state, leaving the partnership book of accounts, embracing the account in suit, in the hands of Mr. Grout, with directions to collect them. Loren immediately notified the defendant to pay to no one but himself, and demanded the company books of Grout, who refused to surrender them or give him a copy of the accounts. Loren then brought this suit, after which the defendant paid the debt to Grout and took from him a release of it. Grout afterward informed L. D. what he had done, and L. D. approved. Grout still retains the money paid him by the defendant.

The partnership was dissolved by the course taken by said L. D. Ayer, in selling out his interest in it and going off. Each partner bad equal legal right to collect the debts due, but in making-such collections he would be acting for the partnership and not in his sole, exclusive right, and would be accountable as partner for whatever he should collect. An attorney employed by one of the partners to make such collections, would be the attorney of the firm, and accountable as well to one partner as the other, and equally subject to the direction and control of one as the other of the partners. It was as much the province of Loren to withdraw the books and countermand the order of L. D. to Grout, as it was of L. D. to deliver the books to Grout with direction to make collections. In this matter Grout was not made the special attorney of said L. D. Ayer, to stand in his place and act in his stead, as fully personating L. D. Ayer himself. The written power of attorney does not extend to partnership affairs. Grout’s employment as to the partnership demands consisted only in the delivery of the books to him by L. D. with directions to make collections. This made him, for that purpose, the attorney of the partnership, and not solely of L. D. Ayer, in respect to those demands. It was competent, therefore, for Loren Ayer to say to Grout that he himself would make any or all of the collections without his aid or interposition; and to that extent Grout would cease to have right or authority as attorney for the collection of such of the partnership demands. It was competent for him to order a debtor of the firm, as he did the defendant in this case, not to pay to any body but himself, and such order would be effectual as against every body but the other partner or a person standing fully in his individual right as partner.

The legal effect of the act of Grout, in taking pay of the defendant and giving him a discharge, depends entirely on the authority with which he was clothed as against Loren at the time the act was done. At that time he had been disrobed of his authority to make collections of the partnership demands by the order and requirement of Loren in demanding of hi in to delivex-up the books of the partnership. The subsequent approval by L. D. Ayer of what Grout had done could give no efficacy to it as. against Loren as one of the partners. It could operate only as between said L. D. Ayer, Grout and the defendant, precluding L. D. Ayer from denying or repudiating tbe propriety .of tbe payment by tbe defendant to Grout, and tbe validity of the discharge given by Grout.

Tbe defendant can not claim immunity against the legal effect of tbe course taken by Loren for bis own behoof as a member of. the firm, for tbe defendant was fully notified, and, in paying to’ Grout, be acted upon bis own judgment, in view of all tbe facts, and of tbe legal rights and liabilities involved. He has ample resource for bis own indemnity against loss, in his discharge from Grout, and Grout is safe by reason of having tbe money paid to him by tbe defendant, still in bis own pockét.

Tbe discharge as given does not constitute a defense to tbe suit, Grout not being authorized to receive payment of tbe debt, or to discharge it. Judgment reversed, and judgment for tbe plaintiff for tbe $63 and interest from the commencement of tbe suit.