38 Vt. 610 | Vt. | 1866
The opinion of the court was delivered by
The orator in his bill alleges in substance that in January, 1861, he and the defendant Adams entered into a copartnership in the millinery business, to be managed by the respective wives of the partners, at Wilmington, each party furnishing half the capital, each putting in about $250. That they continued to carry on the business at Wilmington until June 14th, 1861, during which time they manufactured and sold many of the goods on hand at the commencement of the business, and made new purchases from time to time to replenish their stocks — that on the first of April, 1861, they established a branch shop at Jamaica, which was managed by the wife of Adams till June 14th, 1861, during which time the shop at Jamaica was supplied with goods from the shop at Wilmington ; that June 14th, 1861, the defendant Pierce attached the goods in the shop at Jamaica on a debt in his favor against Adams, and sold them without the consent of the orator, and against his remonstrance, and that neither of the defendants has ever accounted to the orator for the same, although the defendant Pierce knew that the orator was such partner and interested in the goods. It also alleges that Adams has never accounted for any of the goods sold at tfip Jamaica shop before the attachment, nor for any of the profits, and that the orator has advanced more in labor, and otherwise, in carrying on the business of the firm than Adams has, and that at the time of the attachment the firm was indebted to sundry persons for goods, some of which debts the orator has paid, and some remain still unpaid ; that Adams at the time of the attachment was insolvent and has so continued ever since, and that upon a fair accounting it would appear that Adams had no interest in the goods attached which could be reached by his private creditors, and that the orator had a prior lien on the goods for his advances for the firm, and to pay the company debts. The bill prays that an account be taken of the partnership dealings and liabilities, and that Adams be decreed to pay what is due the orator, and that Pierce be decreed to pay to the orator the value of the goods attached and appropriated by him, and for further relief.
The bill is taken as confessed as to Adams, and the defendant
Although Pierce alone defends, it is necessary in order to determine the relative rights of the orator and Pierce, to settle the rights of the orator as between him and Adams. It appears from the proofs in the case that all the avails of the shop at Wilmington went into the business to purchase goods and defray expenses of the concern, and that all the goods on hand at that shop at the time of the attachment, went to Pratt to pay a copartnership debt contracted for goods, and upon which Pratt attached the goods. It further appears that the orator never received any thing from the Jamaica branch of the business managed by Adams. As Adams does not show that there was a loss in the business of the Jamaica shop, he can not object to being charged with the value of the goods taken to'that shop, which the proof shows was $500. He for the same reason should be charged-with the $51.96 taken by him from the Wilmington shop, making $551.96, with which Adams should be charged. One half of this being $275.98, Adams should pay to the orator to adjust the accounts of the copartnership.
It appears that at the time the partnership -failed and Pierce attached the goods, there was but $223.23 in goods at the Jamaica shop, and which, on this basis, all belonged in equity to the orator, so that Adams had no equitable interest in the goods attached by Pierce. The outstanding liability of the firm of $50., does not vary the result. The decree against Adams is therefore correct. Unless Pierce in virtue of his attachment on the separate debt against Adams, acquired a greater right than Adams had in the goods, he is bound to respond to the orator the full amount of the goods he appropriated, (the $223.33,) as that does not exceed Adams’ liability to the orator. Whatever the rule may be at law, it was fully settled in Washburn v. Bank of Bellows Falls, 19 Vt. 278, that a separate
The decree of the court of chancery is affirmed and case remanded.