42 W. Va. 276 | W. Va. | 1896
On the 21st day of September, 1891, John H. Hobbs, being the owner of the Hotel Windsor, situated in the city of Wheeling, W. Va., and also of the furniture and utensils then in said hotel in said city, entered into a written agreement on that day which is in the following words and figures: “This memorandum of agreement, between John H. Hobbs, of the first part, and D. M. Carey, of the second part, witnesseth: That the party of the first part agrees to sell to the party of the second part all his furniture and utensils in the Hotel Windsor for the sum of twelve thous- and dollar's, the same to be delivered upon the payment thereof, and the hotel can be had possession of from Todd & Miller, who are now running the same, holding no lease thereon, or, if one is signed by them and the party of the first part, the said lease requires the surrender of the hotel thirty days after the sale of said furniture, and the party of the first part agrees to rent said hotel to D. M. Carey for
It is claimed that the circuit court erred in ordering the estate of the said D. M. Carey to be distributed in such manner as to give to the said John II. Hobbs and Wheat & Handler, individual creditors of I), M. Carey, a preference as the^ creditors of Paige, Carey & Co., and that it was error in said circuit court not to order the individual estate of said D. M. Carey to be distributed ratably among the said individual creditors of the said D. M. Carey, deceased, and the creditors of the firm of Paige, Carey & Co.
The question submitted for our consideration in this case involves the consideration of the right of the creditors of a partnership to resort to the estate of a deceased partner for the payment of their claims, and whether, in so doing, they are entitled to be paid pro rata with the individual creditors of such deceased partner out of iiis individual estate. Upon this question Story on Partnership (section 863) under the head of “Rights of Joint and Separate Creditors in Estate of Deceased Partner,” says: “Still another inquiry may remain, in cases where the estate of the deceased partner is not sufficient to pay all his separate debts and all the joint debts, and that is whether the debts are to be paid pari passu out of the assets of the deceased, or either is entitled to a preference. The general rule would seem to be, as it is in bankruptcy, that the joint creditors have a priority of right to payment out of joint estate, and the separate creditors a like right of priority to payment out of the separate estate; and the surplus, if any,
It is, however, contended, by the terms of the contracts between Hobbs and Carey, that the title of the property, consisting of the furniture and utensils in the Hotel Windsor was to remain in Hobbs until paid for by Carey, who agreed to pay twelve thousand dollars therefor, who actually paid one thousand five hundred dollars at one time and five thousand dollars at another time, making six thousand five hundred dollars in all, leaving a balance of five thous- and five hundred dollars unpaid, which was to be paid in a few weeks, but Mr. Carey was disappointed in getting the money, and it was not paid. The hotel, however, was rented to Carey & Carney, and they took posessiou of the furniture at the same time they took possession of the hotel. On page 35 of the record Mr. Hobbs was asked: Question 10: “Hid they [meaning Carey & Carney] take possession under the lease which you have identified, and with your knowledge and consent ?” aud answered, “They did; the lease calls for the hotel.” Question 11: “Hid they at the same time take possession of the furniture that was in the hotel? and replied, in taking possession of the hotel, they took possession of what was in it.” Question 12: “Was this, also, with your knowledge and consent ?” Answer: “It was.” Question 21: “And let them have the furniture because you had previously made the contract with Carey of September 21, 1891 ?” to which question he answered, “I did.” And thus the said Hobbs, by his own testimony, shows that he delivered the possession of said furniture to said Carey without insisting on the payment of the residue of the purchase money as a condition precedent, which, we consider, constitutes a complete waiver of said condition. It will be perceived that there was no express reservation of title in the contract between said Hobbs and Carey. It merely stated that the property was sold to Carey for the sum of twelve thousand dollars, the same to be delivered
In the light of these rulings, we must hold that, the property sold by Ilobbs to Carey having been delivered to Carey, with knowledge and consent of Hobbs, without his mentioning or insisting upon the condition mentioned in the agreement, to wit, the payment of the purchase money, said Hobbs must be considered to have waived the condition, and Carey having departed this life, said property must be classed as a part of the assets of said Carey, and as such distributed pro rata among his social and individual creditors; and the decrees complained of must be reversed, with costs.