58 Iowa 469 | Iowa | 1882
I. The evidence shows that defendants, Pier-point and Tuttle, were partners, doing business, in Illinois, and that prior to the attachment of the land in question, Tuttle executed an assignment of all the property of the firm to intervenor, Chandler, for the benefit of its creditors, the' proceeds of the property to be applied pro rata to all. The deed of assignment was executed in the name of the firm and also by Tuttle personally, but without Pierpoint’s knowledge or assent, and, at the time, he was in the town where the firm transacted business, and where the deed was executed, and where both of the parties lived. It is also shown that, Pierpoint, as soon as he was informed of the assignment, objected thereto in a written notice to Tuttle, claiming that the partnership had been dissolved for more than a month prior to the execution of the assignment. Pierpoint also gave Chandler, before he had given bond as assignee, a written notice, objecting and protesting against his acting under the deed. The land in controversy was the property of the firm, the legal title being held for convenience by Tuttle.
It would appear upon principle that such power is not possessed by a partner. Under its exercise the business of the firm may be and, under almost all circumstances, would be destroyed, and the partnership itself practically dissolved as to future business. It is true that, theoretically, the assignment is for the purpose of effecting the payment of firm debts, and that the law allows one partner to use the property of the firm to discharge the indebtedness. But this rule of law is applicable to transactions occurring in the. ordinary
We think the American cases are almost unamious in holding that one partner has not the authority to execute an assignment of the property of the firm, unless his co-partner be absent so that he cannot be consulted, or is incapable, from some cause, of expressing either assent or dissent. We will not here present the cases upon this subject. They are collected and most ably discussed in Burrill on Assignments, pp. 43-65; 1 Am. Leading Cases, pp. 442-462; Collyer on Partnership, § 395, and notes; and Story on Partnership, § 101, and notes.
A case decided by Chief Justice Marshall, at nisi ‘prius, Anderson and Wilkins v. Tompkins et al., 1 Brockenborough, 456, is the leading case cited, as being in conflict with the conclusions we announced. But it appears that this decision sustaining the assignment by one partner without the assent of the other, is not wholly based upon the power of the partner to make the deed, but is partly supported upon the necessity of the case, the partner not joining in the deed being absent on a voyage to Europe. TheCheif Justice, in the course of his opinion uses this language in reference to the execution of the deed without the assenj of the absent partner: “It is true [he] had a right to be consulted. Had he been present he ought to have been consulted. The act ought to have been, and probably would have been, a joint act. But [he] was not present. He had left the country and could not be consulted. Re had, by leaving the coumtry, confided, every thing which respected their joint business to Tomplems \the other partnefj who was under the necessity of acting aloiieP
Y. It is said, too, that Pierpoint, the partner not joining in the deed, is the party who alone can object to it, and that plaintiffs have no ground to complain.
It seems to us that plaintiff, in that an attempt is made, to defeat the priority secured by his attachment by setting up
It is our opinion that the judgment of the District Court ought to be
Reversed.