44 Iowa 556 | Iowa | 1876
-I. It is urged that the court should have rendered judgment against Ledlie for the whole amount of plaintiff’s elaim against Russell, because Ledlie had in his hands due Russell at the time of the garnishment, $3,866, which is more than the judgment against Russell in plaintiff’s favor. This claim is based upon the assumption that the evidence shows that Ledlie bought the interest of Russell in the hardware store, and agreed to pay therefor the sum of $3,866. As already stated, the evidence does not support this claim, but sustains the position of the garnishees that the firm of Mathews & Ledlie purchased the store from the firm of Russell & Mathews. This fully disposes of the first error assigned and discussed.
The law is well settled that the creditors of a partnership have a preference over creditors of a member of the firm, for payment out of the partnership property. Pierce v. Wilson et al., 2 Iowa, 20; Hubbard v. Curtis, 8 Id., 1; Richards, Crumbaugh & Shaw v. Haines et al., 30 Id., 574; Switzer v. Smith & McGowan, 35 Id., 269. In Hubbard v. Curtis,
Y. The court found that at the time of'judgment, the debts of the old firm of Russell & Mathews were $50; and that at that time Mathews & Ledlie owed the firm of Russell & Mathews $1,551.11. The court further found that T. P. Mathews was indebted to the firm of Russsell & Mathews in the sum of $738.33. The agreed statement of facts shows that Russell was indebted to the firm in the sum of $531.86. The difference between these sums, or $206.47 — constitutes assets in the hands of Mathews due the firm. Carl v. Knott, 16 Iowa, 379. The entire assets of the old firm in the hands of the garnishees, less debts, and not including the notes and accounts before referred to, are $1,707.58. Of this the agreed statement of facts shows that Russell is entitled to $126.52 more than Mathews. Russell’s share is therefore $917.05. Of this Mathews is entitled to retain on account of amount paid on the B. F. Allen note $660. There is, then, in the hands of the garnishees, exclusive of notes and accounts, belonging to Russell, the sum of $257.05. The garnishees should not be left to their discretion to collect this amount. They owe it, and judgment should be rendered against them for it. Of this amount the defendant, Mathews, is indebted $103.28, and the firm of Mathews & Ledlie $153.77. For these sums plaintiff, at his election, may have judgment in this court, or in the court below. As the plaintiff could probably have had this judgment in the court below, if the attention of the court had been directed specifically to the matter, he will not recover costs in this court. If any errors have been made in the foregoing computation, they will be subject to correction on motion. Thus modified, the judgment is
Aeeirmed.