40 Kan. 516 | Kan. | 1889
Opinion by This was an action upon a large number of promissory notes made payable to Pierpont Tuttle, and guaranteed by the firm of Shattuck Bowers in these words: "For value received, I hereby guarantee the payment of this note according to the terms thereof, waiving demand, notice, and protest. — SHATTUCK BOWERS." The evidence shows that Pierpont Tuttle were a manufacturing firm, located at Bushnell, Illinois, and that Shattuck Bowers resided in Phillips county, Kansas, and were engaged in the sale of agricultural implements. Certain agricultural implements furnished by Pierpont Tuttle were sold by Shattuck Bowers, and the notes sued on were taken in payment therefor; said notes being made payable to Pierpont Tuttle, and before delivery to them were guaranteed, as above stated. In answer to the petition the defendant alleged, among other defenses, that the plaintiff was not the assignee of Pierpont Tuttle, and that he had no right or authority to bring the action; and also alleged that Pierpont Tuttle had failed to collect the notes when the same were due and payable; that the makers of the notes were solvent at that time, and afterward became insolvent and non-residents of Kansas.
The plaintiffs offered in evidence the notes sued on, and the deed of assignment made in Illinois by Tuttle in the firm-name of Pierpont
Tuttle; also a deed of assignment by Tuttle as the surviving partner of Pierpont Tuttle. Said last deed of assignment, in addition to a general assignment of all the property of the firm of Pierpont Tuttle, ratified the first deed of assignment and all the doings and proceedings had thereunder by the plaintiff as such assignee. Both of these assignments were objected to, and the objection overruled, and were admitted in evidence. The first deed was objected to upon the ground that one of several partners has no authority, without the consent of the other partners, to make a *518
general assignment of the partnership property. The plaintiff contends that the deed of assignment is prima facie good, and it devolved upon the defendant to show that Pierpont did not consent to the assignment, and that unless it was at least shown that he objected to the assignment, the assignment must be held good. In this we do not agree with the plaintiff. Where an assignment is made by one partner, his right to make that assignment depends upon the consent of his copartner; and to give him authority to make it, he must in addition show that his partner consented thereto, or show such a state of facts from which the court could presume assent; or show that the partner was absent from the country, and that therefore his assent could not be procured; or some other state of facts that would show to the court that the partner making the assignment had authority, either by reason of the articles of partnership or by the fact that his being managing agent of the partnership, or some such fact from which the court could say that the assignment was authorized by the partnership. No such proof was made in this case, and we think in the absence of such proof the assignment offered in evidence was absolutely void. (See Burrill on Assignments, 5th ed., §§ 68-88; Loeb v. Pierpont Tuttle
The second assignment offered in evidence presents a more difficult question. In many of the states the doctrine is held that a surviving partner cannot make a general assignment, and in these states the theory upon which the decisions were rendered is that at the death of one partner the surviving partner becomes trustee of the partnership estate, and that he has no power to transfer the trust so created to another trustee. This seems to be the doctrine held in New York. (Nelson,Executor, v. Sutherland, Assignee 43 Sup. Ct. N. Y. *519
327; Loeschigk v. Hatfield
It was said in Carr v. Catlin
As this case goes back for a new trial, it may be proper to say that we think the notes sued on in this action being guaranteed by the defendant, made him jointly liable with the makers of the notes upon default of payment, and he *521 could be sued with the makers or without them. His liability is just the same as if he had indorsed the notes in blank, waiving demand, notice and protest; and no default of the payees or holders of the notes in not bringing an action to collect the same, could excuse the guarantors from payment. If they had desired to protect themselves they could have paid the notes and then had their remedy against the makers, and thereby secured themselves against loss.
It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring.
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