45 Mo. App. 460 | Mo. Ct. App. | 1891
— This action was brought by the surviving partners of the late firm of Crow, McCreery & Co., on a judgment recovered by that firm against the defendant in the year 1876, some fourteen years before the commencement of the present action. The only, defense is that the right of action upon the judgment is not in the surviving partners, but that it is in the surviving partners and the executors of the deceased partners, and that they must all join in the action. The partnership firm of Crow, McCreery & Co. expired by limitation prior to the recovery of the judgment, and was in process of liquidation when the judgment w7as recovered. At the date, wdien the firm expired by limitation and went into liquidation, all the partners were alive, and so they were at the date of the recovery of the judgment; but since that time, and before the commencement of the present action, two of the partners have died, and executors have been appointed upon their estates.
The view urged upon us on behalf of the defendant is that, as the partnership was not dissolved by the death of any of its members, but was dissolved by the expiration of the period of limitation prescribed in its articles, the subsequent death of two of its members did not leave the survivors in the status of surviving partners in the sense which enables them to sue upon this judgment. This view seems to us to proceed upon a misconception of the effect produced by the dissolution of a partnership. The dissolution of a partnership, whether it takes place by the death of a member, or by the expiration of the period of limitation named in the partnership articles, does-not produce a cesser of the partnership relation for all purposes, but only for the purposes of continuing the partnership business and
In respect of dioses in action, the law has been stated to.be that, whenever a partnership is dissolved by death, although the personal representatives of the deceased partner become tenants in common with, the survivor of all the partnership property and effects in possession, they do not become tenants in common of the dioses in action belonging to the partnership, for they belong to the survivor. The legal title to them by operation of law is cast upon the survivor, and he must sue upon them in his own name without joining the representatives of the deceased partner, and he will be accountable to the partnership for whatever he collects. Bredow v. Savings Inst., 28 Mo. 181, citing Story on Partnership, sec. 346.
A judgment recovered by a partnership, when used as the foundation of another action, is a mere chose in action, the same as a bond, note or other paper evidence of indebtedness. The right to sue upon it vests in the
In the case of Ober v. Railroad, 13 Mo. App. 81, this court held that the surviving member of a partnership succeeds to the rights of action of the firm, notwithstanding the dissolution may have taken place prior to the death of the other partner, and while the business of the partnership was in liquidation. In that case the right of action was for damages against a common carrier for delay in making a shipment of goods. But the principle must be the same in application to all rights of action. It is true that that case was decided in accordance with the law of Arkansas, and that this court cited and relied on the decision of the supreme court of Arkansas in Stillwell v. Gray, 17 Ark. 473. But Arkansas was once a part of the territory of Missouri ; a considerable portion of its statute law and of its judiciary system was inherited from us ; and there is no reason to believe that in this particular the law of Arkansas is different from the law of Missouri, or from the general law.
We would stop here, and our decision would rest upon elementary principles in the law of partnership, which every well-informed lawyer is presumed to understand, were it not for the decision of our supreme court in Mutual Savings Inst. v. Enslin, 37 Mo. 453. This decision grew out of the same transaction as the decision which we have already quoted in Bredow v. Savings Inst., 28 Mo. 181. Laying out of view matters of detail, the earlier of these cases held that the surviving partner of a firm, whose other partner had died since the dissolution, has the power to transfer promissory notes of the firm to secure the transferees against their liability as accommodation indorsers for the firm ; while the later decision, involving the same transaction, held that the surviving partner has no such power. The
The later decision in 37 Mo. misapprehends the most fundamental principles of that law. In the first place, it undertakes to draw a distinction in respect of the powers of surviving partners between the case, where the deceased partner dies before the partnership has been otherwise dissolved, and the case where he dies after it has been otherwise dissolved and while it is in liquidation. This proceeds upon the conception that, when the partnership was dissolved, during the lifetime of both partners by mutual consent, the two partners sank to the position of tenants in common, and their mutual agency and trusteeship thereupon ceased. Judge Lovelace, who wrote the opinion of the court, said : “Enslin [ administrator of the deceased
In the first place I can find no distinction in the books, outside of this case, in respect of the powers of surviving partners, between the case where the deceased partner dies while the partnership is a going concern, and the case where he dies after it has been dissolved, and while it is in process of liquidation. There is no foundation in principle for any such distinction. The surviving partner and the executor or administrator of the deceased partner are not tenants in common of the partnership choses in action in any conception of the common law. By the original principles of the common law, the estate of partners was a joint estate, and their obligations were joint obligations. The result was that, when a partner died, the survivor took the entire estate by the jus aceres cendi, though for partnership and not exclusively individual purposes (Egberts v. Wood, 3 Paige, 517; s. c., 24 Am. Dec. 236, 243); and the creditors of the firm simply had one debtor less. Waydell v. Luer, 3 Denio, 410; Fogarty v. Cullen, 49 N. Y. Sup. 397 ; Gleason v. White, 34 Cal. 258 ; Friermuth v. Friermuth, 46 Cal. 42 ; Emanuel v. Bird, 19 Ala. 596; s. c., 54 Am. Dec. 200 ; McLain v. Carson, 4 Ark. 164; s. c., 37 Am. Dec. 777. In equity this rule has been modified so as to make the liabilities of the partners several as well as joint, and so as to clothe each partner with liability for all the debts of the firm; and statutes have been enacted declaratory of the
In Shields v. Fuller, 4 Wis. 102; s. c., 65 Am. Dec. 293, it is said by the court, speaking through Chief Justice Whiton : “ The doctrine, that, when a partnership is dissolved by the death of one of the partners, the survivor is entitled to the assets of the firm for the purpose of paying its debts, and that he can, as such survivor, maintain actions at law for the purpose of collecting debts due the firm, to the exclusion of the administrator of the deceased partner, is so well settled that no authority need be cited to sustain it.” In one of the earliest reported judicial decisions in this country, a decision of the court of common pleas of Philadelphia, it was held that, where a debtor of a partnership firm pays the debt to the executor of a deceased partner, the surviving partner can compel him, in an action at law, to pay it ágain. Ship pen, President, said: “A payment to an executor or administrator can be no satisfaction to a surviving partner, who has the sole right
In the case before us- we are concerned alone with the power of the surviving partner to sue upon and reduce to judgment the choses in action belonging to the firm. That this power resides alone in the surviving partner or partners, and that the representatives of the deceased partner cannot be joined with him or them in such an action, is shown by the following cases: Davis v. Church, 1 Watts & S. 241; Bernard v. Wilcox, 2 Johns. Cas. 374; Belton v. Fisher, 44 Ill. 32; Roys v. Vilas, 18 Wis. 169; Walker v. Galbreath, 3 Head. 315; McCandless v. Hadden, 9 B. Mon. 186. In Clark v. Howe, 23 Me. 560, the partners had agreed between themselves that the beneficial interest in a note belonging to the partnership should be in one of them; it was, nevertheless, held that, after the death of the partner to whom the beneficial interest had been thus assigned, the survivor must bring the action upon it and in his own name; for the legal title was in him. In. Teller v. Wetherell, 9 Mich. 464, an action was brought in the name of both partners, one of whom was dead, and it was held that a judgment rendered therein would be reversed on error, though it does not quite appear upon what principle the improper using of the name of the deceased partner would defeat the right of action of the survivor. In Ohio the principle was carried so far as to hold that a surviving dormant partner may sue alone upon a partnership contract. Beach v. Hayward,
These principles being elementary, it remains to consider how far the powers of a surviving partner, in dealing with the partnership assets, have been curtailed by the statute relating to the administration of partnership estates. The two sections of that statute, material to be considered, are as follows : “Incase of the death of a member of a copartnership, the surviving partner or partners, resident in this state, shall administer the effects and estate of the copartnership in the county in which the copartnership business was conducted, on giving bond as hereinafter provided.” R. S. 1889, sec. 56. “If the surviving partner shall not have administered on the partnership estate at the time the executor or administrator of the estate of the deceased partner shall proceed to take his inventory, it shall be the duty of such executor or administrator to return to the court an inventory of the whole of the partnership estate, goods and chattels, rights and credits, appraised at their true value, as in other cases ; tut, provided, however, the administrator shall keep said partnership estate separate and distinct, and shall account and report in all respects for same as a separate estate.” R. S. 1889, sec. 57.
It is the settled construction of this statute that it does not operate to displace the common-law title and the common-law powers of the surviving partner, until the executor or administrator of the deceased partner elect to give bond for the administration of the partnership estate under the statute, owing to the failure or
This decision was quoted, and this principle reaffirmed by the supreme court in the subsequent case of Easton v. Courtwright, 84 Mo. 27, in which Mr. Commissioner Philips declared it to be the generally accepted doctrine of this country. He also cited Kelley’s Probate Guide (a local work upon our Missouri system of administration), at page 230, et seq., “as evidence of the understanding of the profession.” The decision in 37 Mo. was not noticed. The same principle was recognized by Judge Norton in Matthews v. Hunter, 67 Mo. 293, where, speaking of the interest of the surviving partner and the heirs of the deceased partner in partnership real estate, he said that, if the surviving partner had sold and conveyed the property in pursuance of law to pay the debts of the firm the heirs of the deceased xiartner would have taken no interest or estate
Such being the undoubted law, it remains to devote some special attention to the question, whether the fact that the partnership has been dissolved and has entered upon the period of liquidation, prior to the death of
But it is argued that this question is governed by the following statutory provision: “If one or more plaintiffs in a judgment or decree shall die before the same is satisfied or carried into effect, the judgment or decree, if concerning the personalty, shall survive to the executors or administrators of such deceased party.” R. S. 18: 9, sec. 6023. This statute does not affect the question of the right of the surviving members of a partnership firm to bring a new action upon a judgment recovered by the firm.