Drake v. Rogers

6 Mo. 317 | Mo. | 1840

Opinion >¡‘ he Court delivered by

Napion Jvdg;e.

The appellees brought an action of assumpsit against Thomas C. Eads, Ezekiel Buchanan and Freeborn Sisson. An attachment issued, on the usual affidavit, which was served on the defendant Sisson, but was not executed on Eads or Buchanan. Divers persons were summoned as garnishees, and among others Ch’s. D-. Drake the appellant.— The answer of Drake, after responding negatively to the interrogatories, stated, !hat on the 4th Apiil 1836, the said Eads & Buchanan executed to him a deed of assignment, a copy of which, with its annexed schedule, was attached to his answer. He further stated, that he had taken immediate possession of the goods pointed out to him as the stock of said Eads & Buchanan, and immediately placed the goods at an auction store, to be sold. He also took possession of the goods in iransitu consigned to said firm, so soon as they reached St. Louis. An account of the sales is given to the amount of $2622,89, and he admitted in his hands, as as-signee, after deducting expenses of sale, $2292,20. No disposition had been made of the lands assigned.

The deed of assignment is a tri-partite deed, between said Eads and Buchanan of the first part, said Drake of the second part, and the creditors of said Eads and Buchanan, who should become parties thereto, of the third part; the -deed was executed by Eads in person under seal; by Buchanan, by Ins attorney the said Drake, on 4th April 1836; by -said Drake as party on the second part, on the same day; .and by three creditors, who executed by their attorney ■■Charles D. Drake under- seal, on the 3rd of August 1836.

The trusts declared in the deed were, first, to pay expenses of assignment.

Second. To pay the claims of the several creditors headed, “ preferred creditors. ”

Third. To pay the claims of those creditors who should •execute the deed within four months from the date of the deed, — with a proviso, that no claim shall be paid unless ■claimant shall come into the deed as above stated. The deed contains a release from all the creditors.

Charles D. Drake filed an interpleader, and claimed the property attached in the hands of two of the garnishees, ■and the issue, upon the interpleader, was submitted to the ■court sitting as a jury, which issue, was found against said Drake. Said Drake then moved to be discharged as garnu •shee, which motion the court overruled, and the court rendered judgment against the garnishee for the amount of the judgment obtained against defendants. A motion was made by Drake for a new trial, because the verdict was against law and evidence, which was over ruled and exceptions taken.

From the bill of exceptions it appears, that Freeborn Sisson, one of the defendants in the main suit, was a dormant partner in the house of Eads and Buchanan: that he was not in the city of St. Louis, where the assignment was made, when it was executed, and the same was executed without his knowledge or consent.

The deed of assignment, in this case, contains the same stipulation for a release, which this court has pronounced fatal in the case of Brown v. Knox & Boggs, decided at this term'. But two other points have been raised, distinct from those disposed of in that case.

The first is that this assignment was not executed by anj of the creditors until after the levy of the attachment. Thu deed of a vignment was a tri-partite deed, and the creditors who were to become parties onthe third part, by executing: deed, released all demands an d claims upon the property of the assignors, except such as accrued by virtue of the deed itself. Where a deed is for 1 he benefit of a party, the law would not presume his dissent, and his execution of the deed might not be necessary to its validity. But no presumption in favor of the execution of the instrument by the creditors, could be made in this case, where important benefits were stipulated for by the debtors.

A deed of assignment^t of such eredi-tors as should within a given time, bo-theretofand8 execute a re-be of’no ted'by^ho" creditors, e-suchdoedh were not void on account of the stipul'ation for a re-louse. It would »oom that a Rignmentf ¡n order to pass partnership effects, must bythodor-^ mant, as well partners.^" °

Even the preferred creditors might well hesitate before W0Ldd sign this deed, where they, in common with alb others who might sign would release the debtor from all Tu-liability. The facts in this case appear to coincide ve-'we^’ Presumption, as we see that only three creditors signed, and not until nearly four months had elaPsed after the execution of the instrument by the assignors and assignee. This assignment was therefore for this- • ., reason void against the attaching creditors.

It js a]so ul-ged that this deed was insufficient to pass the partnership effects, because Freeborn Sisson, a dormant partner of the firm of Buchanan and Eads, did not execute it. This court held in thé case of Hughes v. Ellison (5 Mo. Rep. 463) that one partner could not make an assignment.— But I do not perceive how the rule, admitting it to be correct could apply to a dormant partner. The ostensible partners may sue and be sued, without any notice of the dormant partner, and why may they not also make an assignment without his consent? No authority on this point has been cited, but it has not been shown how third parties . . , can be prejudiced by such an assignment. I he dormant partner might perhaps have reason to complain, but s® far as the rest of the world are concerned, they have not been prejudiced. This objection ought not to avail, in my opinion, in a suit of this description. Judgment affirmed.

McGirk and Tompkins Judges concurring in this opinion, except as to the last point.