26 Conn. 444 | Conn. | 1857
The debt which was recovered in this action was originally due to Moseman & Sturdevant. On the dissolution of that firm the co-partners authorized Henry L. Sturdevant, who was one of the members of the firm, to sell and dispose of the property and assets of the copartnership, and to settle all its concerns, collect all bills, notes or book-debts due the concern, and for that purpose, or any purpose legally connected therewith, to use the copartnership name. It was by virtue of this power that Henry L. Sturdevant sold and assigned the debt to Elias Sturdevant the insolvent ; and the first, question is, whether this power authorized such a sale. We think it did. The words of the instrument are very general. He is authorized to sell and dispose of the property and' assets of the copartnership. When we speak of the property and assets of a copartnership, or of an estate, the choses in action are always included, and such is the legal signification of the words, “ property” and “ assets.” Property of course must include every thing that is the subject of ownership; and the word “ assets,” though more generally used to denote every thing which comes to the representatives of a deceased person, yet is by no means confined to that use, but has cometo signify every thing which can be made available for the payment of debts, whether belonging to the estate of a deceased person or not. Hence we speak of the assets of a bank or other monied corporation, the assets of an insolvent debtor, and the assets of an individual or private copartnership; and we always use this word when we speak of the means which a party has, as compared with his liabilities or debts.
But it is said that upon the face of the power under which this sale and assignment was made, the words were used to denote personal chattels, as distinguished from choses in action, because the same instrument contains a power “ to collect all bills, notes or book-debts due the concern.” No doubt the intention of the parties must be collected from the whole instrument. But there is nothing repugnant or unusual in an agent’s having authority to sell, and also to collect, a chose in action ; and when it is considered that this agent
The other question in the case is, whether the plaintiff has adopted the proper form of action in this instance. As this was originally a book-debt, in favor of Moseman & Sturdevant, which was only assignable in equity, no doubt their assignee, Elias Sturdevant, if he had before his failure put the claim in. suit, must have sued it in the name of the original creditors. But the statute in relation to the settlement of insolvent estates, assigned for the benefit of creditors, seems to transfer to the trustee a legal title to all ehoses in action, whether negotiable or not under other statutes, and whether they stand in the name of such debtor or of any other person. It expressly provides that “ the trustee of any estate in settlement under the provisions of this act, may bring any suit or suits that may be necessary in the settlement of said estate, upon any contract, book account, or claim of any kind belonging to said estate, and accruing to him in his right as trustee, in his own name as such trustee, whether such contract, book account, or claim stand in the name of such debtor or of any other person.” Stat. (Ed., 1854,) p. 521, § 16. This statute certainly authorizes the suit to be brought in the name of the trustee. Indeed, this does not appear to be controverted, but it is insisted that this is an action of book-debt, and that book-debt will not lie, although the original claim was a book-debt. It is true that the debt is described in the declaration as due to the plaintiff as trustee by book, and profert is made of the plaintiff’s book as such trustee ; but then the facts are all set out in the declaration. It is averred that the debt was originally due from the defendant to Moseman & Sturdevant; the
In this opinion the other judges concurred.
Judgment affirmed.