Hawes v. Tillinghast

| Mass. | Mar 15, 1854

Shaw, C. J.

The character of the original transaction, we think, expounded by the simultaneous acts of the parties, was that of a sale by the plaintiffs of one undivided half of the two thousand boxes of candles at a fixed price, to be paid for by the negotiable notes of Mixer & Pitman, on six months credit from the time of delivery. The candles were afterwards delivered, and eight notes were given therefor, two of which had been paid and taken up by Mixer & Pitman, as promisors, before their failure. Here were a purchase and payment of one undivided half, which made the parties tenants in common of the whole parcel, and of every box and every candle. The agreement for a consignment to one of the parties to be sold on joint account, although made simultaneously with the sale, and perhaps constituting one motive with the insolvents, to make the purchase, was nevertheless distinct from it, and presupposed and was founded on the fact, that the parties had become equally owners of the property, as tenants in common, which could only be by purchase. The joint connection commenced with the consignment, and embraced whatever was incident to it and followed it. It would render them, jointly, liable for incidental expenses, and entitled to all benefits. If the property had been insured, the premium would have been a joint charge; had a loss by fire been sustained and recovered of the insurer, it would have been recovered for their joint benefit.

But the argument of the plaintiffs is, that the original agreement was an agreement for a partnership, in the sale on joint account of the whole two thousand boxes of candles; that these constituted the whole capital; that the plaintiffs advanced the whole capital, being, owners of the whole, put in under this agreement; that the purchase of the whole was a charge on the joint fund; and that the notes were given by Mixer & Pitman, not as payment, but simply as memoranda, expressive of the items with which they should be chargeable in partnership account, and which must be paid out of the partnership fund, before they would be entitled to distribution of any proceeds. Btit it ap-' pears to us, that the contract and the acts done under it will not warrant this construction, so as to make these notes a specific charge on the joint fund, before distribution. On the contrary, it appears to us, that upon a settlement of the joint o: partnership account, arising from the joint consignment, these notes would not have been a charge in favor of the plaintiffs, upon the joint fund, to be deducted from the fund and allowed the plaintiffs, before Mixer & Pitman could claim distribution. It was not an advance of the whole of the capital, by one of the partners. It was rather a purchase by one party and a sale by the other; and the vendors remaining owners of the other half, each put in one half of the merchandise, constituting the capital, on which the consignment for sale on joint account was made.

The fact that the notes were made negotiable, and payable at a time certain, without regard to the sale of the candles, the fact that they were all negotiated but two, and that those two, which fell due before the failure, were actually paid at maturity, tend to confirm the conclusion that they were regarded as payment. The stipulation, that Mixer & Pitman were to pass over to the plaintiffs one half of the notes, to be received by them on their sales of the property, leads to the same conclusion. It carries the implication, that Mixer & Pitman were to retain the other half of the notes to their use, to be accounted for on an ultimate settlement; whereas Mixer & Pitman, on the plaintiffs’ theory, would have no equitable right to retain any of the proceeds of the sale, beyond their current expenses, until the whole capital had been reimbursed. It appears to us analogous to a case, where two different parties had purchased each one thousand boxes, of -several vendors or of the same vendor, and each given his notes for his purchase, and then they had agreed to consign them to the same factor, either one of themselves or a third person, to be sold on joint account and share profit and loss; the holders of those notes could have no claim on the candles, in the hands of the consignee, in security of his notes. This, though not so plain a case, seems to us analogous to it in principle. The court are therefore of opinion that the plaintiff had no lien, for the amount of these notes, on the fund arising from the sale of these candles; especially after they went into the hands of the defendants, as assignees of Mixei & Pitman. Bill dismissed.