30 Wash. 277 | Wash. | 1902
The opinion of the court was delivered by
This action was brought in the lower court against the respondents, who are the surviving members of a partnership known as Gross Brothers, to recover upon five separate accounts contracted by the firm of Gross Brothers prior to its dissolution. The firm, at the time the accounts sued on were contracted, was composed of David Gross, Morris Gross, Ellis Gross, and Abraham Gross. After the debt was contracted, Abraham Gross died, and two of the surviving members of the firm were appointed
The principal question presented on this appeal is, can a creditor of a partnership maintain an action against the surviving partners thereof after the death of one of the partners, and after the settlement of the partnership estate, when the partnership assets have not been sufficient to pay all the debts of the partnership? In the case of Brigham-Hopkins Co. v. Gross, 20 Wash. 218 (54 Pac. 1127), which was a case brought by this appellant against these same respondents upon the same indebtedness, it was held that the appellant could not maintain the action pending the administration of the partnership estate, because, under §§ 6189 and 6190, Bal. Code, the surviving partners were entitled to administration upon the partnership estate, which was primarily liable for the partnership debts. Whatever may be said as to the correctness of the rule therein announced, it cannot be said that such a rule is not just, especially where no rights of the creditors are lost by reason of ^the delay. Ordinarily the partnership assets
“The Washington statute does not take away the right a surviving partner has of administering the assets of the firm, but only guards it in the interests of representatives of the deceased partners, by requiring a bond, and substitutes the supervision of the probate court for a court of equity. The obligations of the surviving partner are not released, and the remedies of the creditors are not changed.”
Under the decision of this court in Brigham-Hopkins Co. v. Gross, supra, however, the remedies of the creditors are
If the creditors cannot maintain an action pending the settlement of the partnership estate, as was held hy this court in Brigham-Hopkins Co. v. Gross, supra, by reason of the provisions of § 6189 and § 6190, then, under § 4812, Bal. Code, the statute of limitations ceases to run pending the settlement. It was said in Brigham-Hopkins Co. v. Gross, supra:
“In the respondents’ brief, authority has been cited sustaining the proposition that a delay in suing until after the partnership estate has been closed would bar an action against the survivor, but that was in equity. We do not see how it could apply to the present action.”
This was, no doubt, intended to mean that the statute of limitations would not run in this kind of a case pending the settlement of the partnership estate, the court having in mind the rule that the statute of limitations does not run against a creditor who is by higher law prevented from bringing his action. Brooks v. Bates, 7 Colo. 577 (4 Pac. 1069) ; Bal. Code, § 4812. A contrary view is expressed in Brigham-Hopkins Co. v. Gross, 107 Ped. 769, but that decision was expressly based upon the rule announced in Harrington v. Herrick,— that the remedy of the creditor was not postponed pending the settlement of the partnership estate. But this court, in Brigham-Hopkins Co. v. Gross, 20 Wash. 218, held that the remedies of the creditors were postponed pending such settlement.
Reavis, O. J., and Dunbar, Fullerton and Anders, JJ., concur.