61 Wis. 335 | Wis. | 1884
The appellant brought its action in the circuit court of Rock county upon a bill of exchange, bearing date October 6, 1883, made by the Rock River Paper Company, payable to the order of Hinman, Moody & Co., for the sum of $620.10, at fifteén days’ sight, which was indorsed by Hinman, Moody & Co. to the appellant. In this action Hinman and others and the Rock River Paper Company were joined as defendants under the provisions of sec. 2609,
Upon the tl’ial the garnishee Frost introduced in evidence an assignment which he claims was made by “Hinman, Moody & Co.,” of all the property of said firm, for the benefit of the creditors of said firm, and claims to be in possession of the property of said firm by virtue of such assignment. The following is a copy of such assignment:
“This indenture, made and entered into this 5th day of November, A. I). 1883, by and between Sidney 0. Moody, of Kansas City, in the state of Missouri, Moses S. Hinman, Judd M. Cobb, and James H. Eeigart, of the city of Beloit, in the county of Eock and state of Wisconsin, copartners, doing business at Beloit aforesaid, under the style and firm name of Hinman, Moody & Co., party of the first part, and George W. Frost, who resides at said city of Beloit, in'the county of Eock and state of Wisconsin, party of the second part, witnesseth: Whereas, the said copartnership is indebted to divers persons in divers sums of money, as is more particularly enumerated and set forth in a list of its creditors to be filed in the office of the clerk of the circuit court of the county of Eock, in the state of Wisconsin, within ten days after the execution of these presents, as required by chapter 80 of the Eevised Statutes of the state of Wisconsin; and whereas, the said copartnership, party of the
“Now this indenture witnesseth that the said party of the first part, in consideration of the premises, and in consideration of one dollar in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has given, granted, bargained, sold, assigned, conveyed, transferred, and set over, and by these presents do give, grant, bargain, sell, assign, convey, transfer, and set over, to the said party of the second part, and his successors 'in trust, all and singular, the lands, tenements, hereditaments, and appurtenances, goods, chattels, accounts, promissory notes, bonds, bills, debts, choses in action, claims, demands, property, and effects of every kind and description, real, personal, and mixed, belonging to said copartnership, party of the first part, or in which they as such copartners have any right or interest, or which are held by any person or persons for such copartnership, or in trust for the same (except such as are exempt from levy and sale under execution, under the laws of the state of Wisconsin), the same being more fully and particularly enumerated and described in an inventory under the oath of said party of the first part, to be filed by the said party of the first part in the office of the clerk of the circuit court of the county of Rock, in the state of Wisconsin, within ten days after the execution of these presents.
“ To have and to hold the same, and each and every part and parcel thereof, unto the said party of the second part, his successors and assigns, in trust nevertheless, and to and for the uses, interests, and purposes following, that is to say:
“ The said party of the second part doth hereby accept the trust created and reposed in him by this instrument, and covenants and agrees to and with the said party of the first part that he will faithfully and without delay execute the trust hereby created, according to the best of his knowledge, skill, and ability.”
The assignee Frost showed that all the requirements of the statute in regard to voluntary assignments have been duly complied with by him as well as by the assignors.
The only questions arising on either of the appeals arise upon the face of the assignments. The appellant claims that the assignment in the case of TIinman, Moody & Co. is void on its face for several reasons: First, because it is claimed that the assignment itself shows that the firm of Ilinman, Moody & Co. was composed at the time of the
The first, second, third, and fifth objections do not apply to the assignment made by the “ Eock Eiver Paper Co.”
The first objection to' the validity of the assignment, because not signed by Moody, who, upon the face of the assignment, appears to have been one of the partners, is fully answéred by the evidence given on the trial, and by the findings of the court as to the relations which Moody held with the firm at the time of the execution of the assignment. The seventh finding of the court is as follows:
“ That in the fall of the year 1882 such copartnership was carrying on the business of selling paper, and had depots of stores therefor at the cities of Beloit, Wisconsin, Chicago, Illinois, and Kansas City, Missouri; that said copartnership was then composed of the defendants Hinman, Moody, Cobb, and Eeigart; that said Moody resided at and had immediate charge of the business of such copartnership at Kansas City, aforesaid, and said copartnership also owned certain real estate there situate, the legal title to which was vested in said Moody; that said Hinman, Cobb, and Eeigart resided at Beloit, aforesaid, and said Hinman had immediate charge
We think this finding is sufficiently sustained by the evidence. Talcing this finding to be true, then, when the assignment was made, Moody, as between himself and Iiinman, Cobb, and Reigart, was not their partner, and he had no authority or right to dictate or in any manner control the business of that firm. He cannot complain, therefore, that they made the assignment or any other disposition of the property of that firm they might see fit to make; and the fact that he may be liable for the payment of the debts of the firm, notwithstanding the agreement between the parties, does not in any way interfere with their right to make the assignment.
The reason given by the courts for-holding that a part of the members of a partnership cannot make an assignment of the entire partnership property to a trustee for the benefit of creditors, is the want of authority; that the fact of partnership alone does not confer any such power; and when such assignment is made by a less number than all, it must, as a general rule, be held void for want of authority; but it. will be sustained if authority be in fact shown to exist, or if the omitted partner or partners afterwards ratify it. Admitting that Moody may be liable to the creditors of the firm making the assignment, yet having before the assignment withdrawn from any management-or control of the business of the firm, and conferred such management and
The second and third objections, that the assignment does not on its face purport to be an assignment by the partnership or of the partnership property, is, we think, entirely unsupported. In the description of the parties to the assignment, the party of the first part is Moody, ITinman, Cobb, and Reigart, copartners, doing business at Beloit under the style and firm name of “ Ilimnan, Moody & Co.” We think this clearly indicates that the party making the assignment is the partnership doing business under that name at Beloit, and not the individuals who compose such partnership. If it be held that the party of the first part described in the assignment be the partnership doing business under the style and firm name of “ Uinman, Moody & Co.” at Beloit, then there can be no chance for any doubt as to what property is conveyed to the assignee by the assignment. In the granting clause the property conveyed is described as belonging to said copartnership, party of the first part, or in which they, as copartners, have any right or interest, or which is '
It is urged that the assignment is void because it directs t'he assignee to “make such payment or payments to the creditors of the party of the first part as shall from time to time be directed to be made by the circuit court, or the judge thereof, as provided by law.” It is insisted with great earnestness by the learned counsel for the appellant that under this direction in the assignment the assignee would not be at liberty to make any payments to creditors out of the proceeds of the assigned property until directed to do so by some order or direction of the court or judge, and that it is, therefore, an unlawful restriction upon his duties under the statute. It is said that under the statute he may make payments without the direction of the court, and it may be admitted that such is a proper construction of the powers of the assignee under the law. The language above quoted from the assignment should not. receive a construction which would invalidate the assignment, if any other construction can be reasonably given to it which will uphold it; and, when read in connection with what immediately follows it, it means nothing more than that the assignee shall make payments to the creditors from time to time when directed by the court or judge as provided by law, but it does not prohibit him from making other payments when not so ordered, if, under the law defining his powers as assignee, he may make such other payments.
It is also urged that because he is restricted to making payment of claims proved against such partnership as provided in ch. 80, E. S., the assignment is void. It is claimed that the assignee may lawfully pay creditors of the as
These provisions clearly indicate that all claims against the assignor shall be verified or proved in the manner above set forth, before payment of any dividend thereon can be demanded of the assignee. The assignment does not, therefore, unlawfully restrict the assignee in the payment of the debts due from the assignors. The language used cannot be
The fifth objection, that the assignment is void because it reserves to the assignors “ such property as is exempt from levy and sale under execution under the laws of the state of Wisconsin,” does not, especially in the case of an assignment of partnership property by the firm, render the assignment void. Under the decisions of this court, a copartnership is not entitled to any exemptions out of the copartnership property.- The reservation in the assignment to the copart-nership; the party making the assignment, of exemptions out of the partnership property, is simply a reservation of no part of the property assigned; it is entirely ineffectual
If it be urged that the reservation in the assignment of property exempt from execution should be.construed in view of the decision of this court, viz., that a partner may claim an exemption, with the consent of his copartners, out of the partnership property, and select such exemption out of the copartnership property even after seizure upon execution (see O’Gorman v. Fink, 57 Wis. 649), and therefore there is a reservation to each of the several partners, from the propr erty of the firm, of goods of the value of $200, to be selected by each, with the consent of the others, after the execution of the assignment; still we think that the great weight of authority would be in favor of the validity of the assignment, notwithstanding such reservation, and that if the property was, in fact, selected and separated from the pai'tnership assets before the same were, in fact, actually delivered to the assignee, such reservation and retention by the partners would not avoid the assignment. See the following authorities: Burrill, Assignm. (4th ed.), §§ 133-151; Brooks v. Nichols, 17 Mich. 38; Rosenthal v. Scott, 41 Mich.
I am unable to agree with my brethren as to the effect of the following clause in the granting part of the assignment: “ Except such as are exempt from levy and sale under execution under the laws of the state of "Wisconsin.” This court has held that such a clause in a chattel mortgage rendered it void for uncertaintjq and in an assignment rendered it void for uncertainty and as an unlawful reservation. It is held that this reservation is inoperative and void in this assignment because it is to the partnership, and a partnership, as such, has no exemptions, and that therefore there is nothing reserved, and no uncertainty in the assignment to render it void. But is this reservation alone' to the partnership as such? The language is very broad and general: “Except such as are exempt,” etc. This court has held that the partners are entitled each to their exemptions out of the partnership property, when the partnership has been dissolved and they have severed their interests in the exempted property. Does not this language mean just such lawful exemptions, and no other? Does it mean only an exemption to the firm when the firm has no exemption? It. seems to me that this would be a forced limitation of its obvious meaning. The assignment, although a partnership assignment, had to be made bjr the
It is very clear to my mind that the assignors so understood it, and intended to express such a meaning, by it, and that the assignee so understood it also. A practical construction to such effect was placed upon it by the partners by severing their interests and selecting their exemptions some ten days after the assignment was fully executed and the assignee had entered upon his trust. Such a clause in the written instrument would have no effect or operation if, before the assignment had taken effect by the delivery of the property to the assignee, the exemptions had been taken out; for then it would have been rendered certain, and the property delivered would alone have passed to the assignee. But when all the property goes into the possession of the assignee, subject to the right of the assignor to afterwards
By the Court.— The judgment of the circuit court is affirmed on each appeal, and the cases are remanded.