| Wis. | Jan 15, 1873
The plaintiffs title was founded upon the assignment offered in evidence. That was an assignment for the benefit of creditors, of all the partnership property, made in the name'of the firm by the partner Donovan. It appears that Driscoll was present, and approved of the assignment, and therefore, in contemplation of law, must be deemed to have executed it. But the defendant Sullivan, the other partner, though present in the city of Milwaukee when the transaction took place, yet was not consulted about the assignment, and knew nothing about it until after it was made. And, notwithstanding this was so, the court below charged that the partner Donovan had a right to execute the general assignment to the .trustee, who was a creditor, and the plaintiff in the suit, without the concurrence or assent of Sullivan, even though Sullivan was at the time in the city of Milwaukee. This charge was excepted to by the defendant’s counsel, and the authorities cited upon their brief show beyond controversy that it was erroneous. The law seems to be well settled, that one partner has no power, when the other partners are present, to execute a general assignment of the partnership property, without the concurrence of the other members of the firm. The adjudications in support of this proposition are cited upon the brief of the counsel for the defendants, and need not be repeated in this opinion. Nor is there any real conflict between these decisions and the authorities cited on the other side to sustain this assignment. Prof. Parsons, in his work on Mercantile Law, p. 175, to which we have been referred, says, in note 1, that a partner, if his copartner be engaged with him in managing the
It appears that Sullivan had quite as much to do with the business of the firm as the other partners, and he was present where he could and should have been consulted -in regard to so important a matter as making a general assignment of the property of the firm. It is assumed by the counsel for the plaintiff, that the defendant Sullivan is not in a position to question the validity of the assignment. But we are unable to perceive any principle which prevents his so doing. The assignment is void, and in fraud of his rights. And the plaintiff, claiming the possession of the property belonging to the firm, seeks to recover it from him by virtue of this void assignment. It seems to us that the doctrine of Geisse v. Beall, 8 Wis., 386, and of Lincoln v. Cross, 11 id., 94, does not apply.
It is also assumed that the assignment might be sustained, under the circumstances, because it appeared that the firm was insolvent, and that Donovan did the only wise and proper thing possible to protect the creditors. But this ground fails in view of the evidence. The plaintiff testified that the property which he obtained under the assignment sold for $830, while the debts mentioned in the assignment, including his own, were less than $700. And, in any view which we have been able to take of the case, we think the judgment must be reversed, and the cause remanded with directions to grant a ve-nire de novo.
By the Court.— It is so ordered.
On a motion for a rehearing, Mr. Ryan argued that the real question to be decided in the cause was, whether the assignment was void or only voidable; that if it was voidable only, a title passed to the plaintiff, which could only be avoided by the defendant Sullivan by suit in equity against his copartners
The motion for a rehearing was denied.