Clark v. Rives, 33 Mo. 579

Clark v. Rives

33 Mo. 579 | Mo. | 1863

Dryden, Judge,

delivered the opinion of the court.

The document executed by Heintzleman and recited in the agreed case is not preserved in the record, and we are therefore deprived of the means afforded by a view of its terms and provisions of determining its meaning and operation, but *582it is fair to presume in favor of the judgment, that it was sufficient to accomplish all that was claimed for it, and which could be legally effected by the act of one partner.

It is well settled that in virtue of the community of rights and interest in the partnership property, each party possesses full power and authority to sell, pledge, or otherwise dispose of the entirety of any particular effects belonging to the partnership, and not merely of his own share thereof, for any purpose within the scope of the partnership, (Story on Partnership, § 94) ; and upon this principle we think it was within the competency of Heintzleman, as partner, to relinquish the rights of the firm secured by the contract in the second count of the petition, and permit the partnership property before the expiration of the credit to be applied to the partnership debt, and.that, having made such relinquishment, it was a justification for the seizure and sale under the joint judgment, and a plea in bar to the second count.

The ground upon which the Common Pleas seemed to place its denial of the plaintiff’s right to recover, was that a levy and sale of the partnership property, in contradistinction to the several property of the partners, did not constitute a breach of the contracts sued on. The design of the contracts was to relieve the property of the debtors for a limited time from the pressure of the judgments they had confessed ; and we see nothing in the nature of the subject, or in the language of the contracts, to justify the inference that the parties employed the term “property” in any such restricted sense. The seizure and sale of each kind of property would be alike injurious to the parties, and each was alike subject, at law, to seizure and sale on execution, whether for the firm debts or the individual debts of the partners, and it is therefore fair to presume, in the absence of a clearly expressed intention to the contrary, that the parties intended to. embrace within the protection of the contracts both kinds of property. The true test of liability was not whether partnership property, but whether any property of the plaintiff had been seized and sold.

*583We have already considered the ground of defence to the second count, and found that it consists in the discharge of the contract counted on, and the absence of a breach. But no such defence to the first count is shown to exist. Heintzleman’s relinquishment could have no effect upon the several contracts of the plaintiff, but spent its whole force upon the joint contract of the firm. The levy and sale of the plaim tiff’s interest in the partnership property, under the judgment against him alone, was in violation of the agreement declared on in the first count, and the court, therefore, erred in its declaration of the law; wherefore the judgment must be reversed, and the cause remanded, and it is so ordered;

the other judges concurring.