Guptil & Hinton v. McFee, 9 Kan. 30

Guptil & Hinton v. McFee

9 Kan. 30 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

E. A. Guptil and Charles Hinton were partners in business. H. McFee and H. Riley obtained a judgment against them, and an execution was issued on said judgment. The officer to whom the execution was directed levied on the partnership goods of Guptil & Hinton, and took them into his possession. Guptil & Hinton in a joint action as partners then replevied them from the officer, claiming that the goods were exempt by law from execution. A trial was had in the replevin case before the court and a jury. The verdict was for the defendants, (the officer and McFee and Riley,) and against the plaintiffs, Guptil & Hinton, and judg*34meat was rendered accordingly. The plaintiffs bring the case to this court.

We have all the evidence presented to the court below before us. The facts were undisputed. In fact they were nearly all admitted by the pleadings, and the others were indisputably shown by the evidence. There was no conflict in the evidence. The only question therefore which was to be determined in the court below, and to be determined here, is purely a question of law. That question is, whether partnership property consisting principally of merchandise bought to be sold again for profit is, while still in the hands of the firm, exempt by law from an execution against the firm. If .said property was exempt the judgment of the court below is •erroneous. If it was not exempt, then the judgment is correct. We shall not examine the rulings of the court below in detail, but will simply consider whether the said property was exempt or not. The plaintiffs in error claim that the ■said goods were exempt under the eighth] subdivision of § 3 of the exemption law, which reads as follows :

“Sec. 3. Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: * * * Eighth, The necessary tools and implements of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade or business, and in addition thereto stock in trade not exceeding four hundred Hollars in value.” (Gen. Stat., 473.)

• We suppose it will be admitted that the said goods were mot exempt at all unless they were exempt under the provision •of the statute just quoted. We are of the- opinion that-they wfere not exempt at all, and for the following reasons: First, they were all partnership goods, still in the hands of the firm against whom the execution was issued, and hence said exemption law does not apply: Pond v. Kimball, 101 Mass., 105. Second, they were (principally if not entirely) goods bought to be sold again as merchandise, and were not the goods, the tools, implements, or stock in trade, of a mechanic, *35miner, or some other person, who earned his livelihood in whole or in part by the use of tools or implements, and to the exercise of whose trade or business tools or implements were necessary. Grimes v. Bryne, 2 Minn., 90, 104, 105.

The reasons given in the case of Pond v. Kimball, supra, why partnership goods are not exempt from execution are very strong, and we could not if we would, add anything to them. That our statute exempts property in favor of individual persons only, and not in favor of copartnerships or corporations, we would suppose would hardly be controverted; and yet it seems to be controverted in this very action. The plaintiffs in this action sue jointly, as partners. They claim as partners that the property is exempt. The property has never been divested of its partnership character. Now if it be admitted that our statute exempts property in favor of a copartnership or corporation, will’, it be claimed that such copartnership or corporation may take four hundred dollars worth only of stock' in trade, as an individual may, or will it be claimed that such copartnership 'or corporation may take an amount equal to four hundred dollars for each individual member of the copartnership or corporation, let the number of such members be great or small? And how is it to be determined whether the copartnership or corporation will desire to reserve anything as exempt? May a majority of the members determine the matter? Or may those who own an interest greater than one-half determine the matter? And will the minority, or those who represent the less interest, be governed by the majority, or those who represent the greater interest, or vice versa? If one portion of the members is not to be governed by the other portion, or if four hundred dollars’ worth of the property is to be exempt in favor of some of the members, and not in favor of others, how is the exempted property to be separated from the balance? Can the officer effect the separation? Can any number of the members less than a majority, or can even a majority do it? Some of the members may have a great interest in the copartnership or corporation. Others may have only a small *36interest. Some members of a copartnership have only a slight interest in the profits of the business. But if we adopt the theory, which is the true one, that the exemption is in fayor of individuals only, and not in favor of copartnerships or corporations, we are equally led to the conclusion that partnership property is not exempt from execution. “ Property belonging to the firm cannot be said to belong to either partner as his separate property. • He has no exclusive interest-in it. It belongs as much to his partner as it does to him, and cannot in whole or in part be appropriated (so long as it remains undivided) to the benefit of his family. It may be wholly contingent and uncertain whether any of it will belong to him on .the winding up of the business, and the settlement of his account with the .firm.” (Pond v. Kimball, 101 Mass., 107.) Suppose the firm should consist of twenty members: could they hold in the aggregate'$8,000 worth of •property, as “stock in trade,” exempt from'execution, and continue to do business.on it without paying their partnership debts, or would they be confined to $400 worth? And suppose that nineteen of the members had no property in the world not exempt from execution, and that the twentieth one had an abundance outside of the copartnership property: could these nineteen, by claiming their exemptions, compel the twentieth one to pay all the copartnership debts? And suppose this twentieth one owned nearly all the capital that had been put into the copartnership: could the nineteen -hold their exemptions not only as against the creditors of the firm ■and others, but also against this twentieth member? We think not. One partner has just as much right to control the disposition of partnership property as another. One partner has just as much right to say that a certain specific article of partnership property shall not be exempt, as another has to say that it shall be exempt. In fact he has a better right, for the partnership was certainly not created for the purpose of holding property exempt from execution. If a party desires to retain his personal property as exempt from execution, he must either not put it into a copartnership, or *37he must get it out of the copartnership and make it his own exclusively before an execution against the firm is levied on it. If the execution should be against him alone, we of course ex2)rcss no opinion. Neither do we express any opinion where his interest in the property is fixed and certain, as a joint interest, or an interest in common, or an interest consisting of an aliquot part, and not merely a contingent copartnership interest. The case of Pond v. Kimball was decided by the supreme court of Massachusetts in 1869, and is the last decision upon this question that we are aware of. Two years before that time (in 1867,) the Court of Appeals of New York decided the same question: Stewart v. Brown, 37 N. Y., 350. We know of no other decisions on the question. The decision in New York is exactly the reverse of the decision in Massachusetts. But while the Massachusetts decision is the most recent, we also think the reasons that it gives are much the stronger, and therefore we follow it in preference to the New York decision.

Upon the other proposition there are no conflicting decisions. It has been decided in Minnesota tqjon a statute almost identical with ours as follows: “The exemption law does not contemplate that all or any of the enumerated articles shall be exenqh in the hands of every citizen without regard to circumstances, but must receive a construction in accordance with its general intent. The words of the eighth section (subdivision) were intended to comprehend a class of citizens who earn their livelihood by the use of tools and implements, in whole or in part. A man may derive his j>rincipal support from some business in the exercise of which tools and implements are necessaiy, and still not be strictly a mechanic or miner. Such persons were intended to be included by the words, ‘or other person/ in this subdivision of the act, and it should read ‘the tools and instruments (inrplemcnts) of every mechanic, minor or other person to ike exercise of lokose trade or business tools or implements are necessary, used or kept for the j>urpose of carrying on his trade or business, etc. And the next clause of the same subdivision, ‘and in *38addition thereto stock in trade not exceeding four hundred dollars in value/ applies only to the same class of mechanics, miners or other persons/ and not to tradesmen and merchants generally, in the exercise of whose profession or business tools and implements arc unnecessary.” Grimes v. Bryne, 2 Minn., 90, 104, 105. For the reasons to support this proposition, we would refer to those given by the Minnesota court.

It is probable that if the property levied on in this case, had not been partnership property a very small portion of the same would have been exempt. But as all of it was partnership property, and very nearly all of it merchandise, none of it was exempt. The judgment of the court below is affirmed.

Kingman, C. J., concurring.