5 Mart. (N.S.) 626 | La. | 1827
delivered the opinion of the court. This suit was commenced by attachment; and merchandize, in the possession of Lockhart and Arrott, merchants in the city of New Orleans, was seized, which had been consigned to them by the defendants from Philadelphia. The cause, as shewn by the record, was first heard and determined between the original parties, and judgment rendered in favour of the plaintiffs for the sum by them claimed ; and afterwards examined and adjudged in relation to the claim of the intervening parties, which was sustained by the judgment of the court below : and the plaintiffs appealed.
The persons who intervened in the cause,
The answer states, that the joint interest in the parcel of goods, about which the present contest exists, is the only transaction which ever took place between Hood & Co. and Cohen and Nisbet, and that there is no general account between them.
The sub-divisions of the principal question have been explicitly answered ; and we are of opinion that the testimony was properly admitted in the court below. The affidavit of the defendant, considered as an extra-judicial confession, was also correctly received in evidence, as it could not in any manner affect the interest of his firm; for it would be indifferent whether they are bound to the plaintiffs or the intervening party; any prejudice or feeling they might be supposed to have in favour of one or the other party, ought not to render confessions on their part, incompetent.
The legal questions which arise in the case, may be considered in the following order:1st. Whether the joint purchase of the goods in question, by Hood & Co. and Cohen &
Partnership, as defined by our code, is a synallagmatic and commutative contract made between two or more persons, for the mutual participation in the profits which may accrue from property, credit, skill or industry, furnished in determinate proportions by the parties. See the Louisiana Code, art. 2,772. According to a definition given by Gow, a late writer on the subject, in pursuance of the rules which govern it in England, it is said to be "a voluntary contract between two or more persons, for joining together their money, goods, labour and skill, or either, or all of them, upon an agreement that the gain or loss shall be divided proportionably between them; and having for its object the advancement and protection of fair and open trade.” See his Treatise, p. 2.
It is true, that a community of property does not of itself create a partnership, however that property may be acquired, &c. See the art. 2,777, cited by appellant’s counsel. But when personal property is acquired jointly by two or more persons, for the express purpose of being sold on joint account, with a view to gain, it appears to us that a partnership is created in relation thereto, and that the rights and claims of the parties must be regulated agreeably to rules appertaining to such contracts.
The owners of property held in partnership, have not separately a particular interest in distinct portions of the common stock, but possess it each as proprietor of his undivided portion, and of the whole: or, as expressed by writers on the common law of England, in ancient Norman dialect, each partner is possessed per my et per tout. See Gow’s Treatise on the Law of Partnership, p. 49. Creditors of a partnership have, according to law, a pre
A partner may be a creditor of the partnership for the sums which he has discharged for the common benefit, &c. See Code. art. 2,835.
In the present case it is shewn, that Cohen & Nisbet paid for the merchandize out of their own funds, which was purchased jointly for them and the defendants in the attachment, and thereby became creditors of the partnership to that amount ; and in relation to the joint stock, must be considered in the same situation with any other creditors of the partnership, and have a claim on its funds in preference to creditors of the partners individually. Consequently they are to be preferred to the plaintiffs, who are creditors of Hood & Co. alone. And as the evidence shews that nothing will remain of the common stock after payment of partnership debts, the judgment of the parish court is correct in adjudging the fund in the hands of the garnishees to the intervening party.
In pursuance of the expressions of our attachment law, which are very general, the app
It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.