20 F. Cas. 400 | E.D. Mich. | 1874
It seems too clear to admit of argument, that, in order to maintain proceedings in bankruptcy against partners as such, it must be alleged and proven that the firm has committed an act of bankruptcy; and that where the act charged is the fraudulent conveyance of prop■erty, it must be of partnership property. Or, to state the proposition in a form more directly applicable to the present case, a conveyance by one partner of his individual property, although an act of bankruptcy as against him, will not sustain a proceeding in bankruptcy as against the firm, even though such conveyance was made with intent to hinder, delay or defraud firm creditors, or with a view to give a preference to a firm creditor. In such case the proceeding must be against such partner alone. It has been often so decided. In re Waite [Case No. 17,-044]; In re Williams [Id. 17,703]; In re Hartough [Id. 6.164]; In re Mitchell [Id. 9,656]; In re Melick [Id. 9,399]; In re Stevens [Id. 13.393]; In re Crockett [Id. 3,402]; James, Bankr. Law, 191. It is unnecessary to consider in this connection in what cases and under what circumstances the act of one partner in relation to partnership property may be deemed the act of the firm, for the reason that the statements of the petition in this case clearly show the case to be outside of all such considerations. The first and second grounds of demurrer are therefore well taken.
It results from this, without going into other points raised by the demurrer, that the petition must be dismissed as to the respondent Andrew Martin. But as the acts of bankruptcy charged are sufficient to sustain a proceeding against the respondent Dennis Redmond, the petition will not be ■dismissed as against him, unless made necessary by the remaining points raised on the demurrer, tVliich points will now be considered.
A pleading in the alternative is always objectionable; and where it relates to a material fact in the case, it will be held bad on demurrer; and where one of the alterna-fives would support the pleading and the other not, the construction will be against the pleading and it will be held bad on demurrer.
In the present case it is charged in the petition that O’Donnell, who is alleged to have been preferred as a creditor, was a creditor of the firm or of Dennis Redmond. This would be held bad as against the firm, because, if O’Donnell was a creditor of Redmond alone, then he was not a creditor of the firm, and the allegation does not support the charge.. But as against Redmond alone it is immaterial, because, in either case, O’Donnell would be a creditor of Redmond.
The third- ground of demurrer is therefore also well taken-. But as the allegation demurred to, although inartistic as a pleading, is not necessarily bad as against the respondent, Redmond, the proceeding must be still retained as against him.
The petition alleges.'“that your petitioners' several demands exceed the amount of .two hundred and fifty dollars, and that the nature of your petitioners’ several demands against the said Dennis Redmond and An drew Martin, are as follows,” and then' follows a statement of each claim, those of Lake and Rump being stated to be for; balances for work and labor, and for labor and materials, but without'stating for whom such work, labor-and materials were done and furnished. -A careful, correct pleader would no' doubt have inserted the missing allegations. But doe's -the omission of them render the. pleading, so uncertain that it cannot be. sus- ■ tained ? The allegation is as to the nature of - certain .demands already alleged to . be against the debtors named. It seems to me that no one could well be misled or uncertain as to the parties for whom the work,' etc., alleged, was done. Therefore, while condemning in the strongest terms the loose and careless style of pleading adopted .'in this ease on the part of the petitioning creditors, I should not feel quite justified ■ in holding the petition bad on this account.. •
An order must be made sustaining the demurrer upon the first, second and- third grounds alleged; that the petition be. dismissed as to the respondent, Andrew Mar-. tin; allowing-the respondent, Dennis Red- • mond, to answer the petition within ten - days from the date of the order; and .that the petitioning creditors pay to the respondents the costs of the demurrer, including a solicitor’s fee of ten dollars.
