107 Mass. 269 | Mass. | 1871
When a person suffers loss in consequence of giving credit to parties who are insolvent, a court of equity cannot always give him relief. The plaintiff in this suit in equity seems to have suffered from this cause, and it arises partly from his neglect to avail himself of the security which he had in his possession. He asks the court to protect him by injunction against the action now pending against him in favor of Charles D. Palmer on a note for $1138, given by Giddings & Palmer. The master’s report finds that this note was given by Edward' A. Palmer without the knowledge of Giddings, but was given for money received and used for the benefit of the copartnership with the knowledge and consent of Giddings. The firm also, with the plaintiff’s consent, sold Charles D. Palmer a pair of horses and a wagon for $300, which sum he indorsed on the note. The plaintiff was thus hable originally for the note, and had recognized its validity afterwards. But he also relies upon other facts as constituting equitable grounds for resisting the collection of the note.
He had been a partner in trade, in 1866, with one Alfred Gardner, carrying on the business of an ordinary country store. In July of that year, the defendant Edward A. Palmer purchased the interest of Gardner in the concern, and became associated with the plaintiff in business, under the firm of Giddings & Palmer. He was the son of Charles D. Palmer, and obtained from him certain securities, which he paid to Gardner, and after-wards exchanged them for a note of $1000, signed by himself and his father, and payable to Gardner.
About February 1867 Giddings & Palmer sold their stock in trade to one Dyer D. Stannard, with the exception of some small articles, and took of him twelve notes of $100 each. They were given by Junius P. Adams, and were secured by mortgage and otherwise. The plaintiff then had a right to have these assets, and all the other assets of the firm, applied to the partnership debts; and might have enforced his claim in equity. But instead of protecting himself in that way, he divided the assets with his copartner, each taking a portion of the notes and ac
Among the assets assigned to Palmer and taken by him, were the Adams notes of $1200; and among the debts assumed by him was the balance of the $1188. But the plaintiff parted with his hen upon the Adams notes to pay the debt; and relied upon the promise of his partner to pay this debt, as his partner relied upon his promise to pay other debts. His partner did not take the notes subject to any trust, but by the plaintiff’s assignment of them took an absolute property in them; and the plaintiff then parted with his interest in the partnership property, without taking any security, and relying merely on the promise of Palmer to pay his share of the debts, the debt to his father among others.
The court cannot annex a trust to the Adams notes, which the plaintiff neglected to provide for; or rather, a trust which he released. Courts can enforce trusts, but cannot renew them for parties who release them. The effect of the division of the assets was, to give the absolute title to each partner, and to reduce his responsibility to pay his share of the debts to a mere matter of ordinary contract, as to his copartner.
The defendant Charles D. Palmer knew how the parties were situated, and what they had agreed to do; and with his knowledge and assent, his son sold the Adams notes, and, instead of paying his father’s note with the avails, paid the note which he and his father had given to Gardner. He also sold some of the assets which had been assigned to him, and applied the avails to the payment of money which his father had advanced to him to pay Gardner. All this was in violation of his contract with the plaintiff, as his father well knew; and it was inequitable in the same sense that it is inequitable for any person to pay money on his unsecured debt, while he is leaving a surety to pay one of his other debts. But the money with which he paid his father was not subject to any trust which the law can enforce.
Bill dismissed, with costs.
Judgment for the plaintiff.
