Stevens v. Stevens

39 Conn. 474 | Conn. | 1872

Seymour, J.

The plaintiff is a deputy sheriff, and as such had in his hands a writ of attachment against one Norris. Upon this writ he attached the interest of Norris in the stock and fixtures in a certain store in No. 48, Congress Avenue, New Haven. The defendants thereupon executed a receipt for the property under their hands and seals, promising “ to re-deliver the property on demand, or in default thereof to pay the sum of $75, or (if demand be not made before judgment rendered) the amount of damages and costs which shall be recovered by the plaintiff if the same fall short of $75.” The defendants also expressly estop themselves from denying the attachment of the property or its receipt.

Judgment was recovered against Norris for $41.59 and due demand made with the execution on the defendants for the property receipted, which they refused to deliver. The plaintiff thereupon brings this action on the receipt.

It appears from the statement of the case that the property attached belonged to the copartnership of Skinner & Norris, which partnership had not been dissolved, but Norris had absconded some sis days before the attachment. The property by Skinner’s consent was in the possession of James B. ■Stevens, one of the defendants, and by the like consent is retained or has been disposed of by him.

The questions in the case arise upon the point whether certain evidence ■ offered by the defendants was properly excluded. They • offered to prove that Norris had put into the business so much less than his proportionate part, and had drawn out so much more than his proportionate part, that upon a settlement between the partners all the assets of the firm, including the property attached, would have belonged to Skinner, and that therefore Norris had no attachable interest, or if he had it had no value.

This evidence was excluded by the corah. Evidence was also excluded that all the assets of the firm, including the property attached, would be insufficient to pay the debts of the firm.

It was not claimed however that any steps had been taken on the part of any partnership creditor to avail himself of the goods attached, nor that there had been any proceedings in bankruptcy or insolvency.

Judgment having been rendered for the plaintiff, the defendants ask for a new trial on account of the exclusion of the evidence offered by them as above stated.

The argument is, that by the law of Connecticut the defendants may show in their defense that the property attached did not belong to the debtor, and did belong to the defendants themselves, or to Skinner the partner by whose authority the defendants detain the goods. The defect in this argument is, that the proposed evidence does not disprove Norris’s title. That title indeed was of a partner in partnership property, but such a title is attachable in a suit against an individual partner. It being settled law that the sheriff may lawfully seize the partnership goods and keep them to respond to the suit, it follows as a necessary consequence that the sheriff is entitled to call on the receiptor for tbe property when wanted on the execution. The goods in dispute were copartnership property when attached, and continued to be such when demanded, and it was the plain duty of the defendants to re-deliver them to the sheriff. The facts sought to be proved by the defendants would indeed, if true, indicate that Norris’s interest in the goods was of slight value, but the partnership accounts were unsettled, and the only legal mode of settlement is by the sale of all the partnership effects, and until sold each partner has a legal interest in those effects subject to legal process, liable to be taken and sold on execution.

We think it clear, therefore, that the facts sought to be proved by the defendants constitute no defense to the suit. The defendants have broken their contract, and, by the terms of the receipt, upon failure to return the property on demand they are to pay the amount of the execution. Were it not for this special clause it would be open for the defendants to show the value of Norris’s interest in the goods, but the defendants have agreed upon a rule of damages for nondelivery, and there appears no reason why they should not be. bound by that agreement. There are cases where such a special clause may be proper, and we do not feel at liberty to say that such an arrangement is per se void and incapable of being enforced.

The plaintiff’s counsel argued that officers’ receipts are mere contracts of indemnity, and that if the officer were sued by the creditor for not having the property attached forthcoming to respond to the execution, the rule of damages would be the true value of the interest of Norris in the goods. It is conceded that such receipts are regarded for many purposes as contracts of indemnity, but not to the extent of nullifying a stipulation of agreed value of the property. The covenant in this case to pay a stipulated sum not exceeding the amount of the judgment which the plaintiff in the attaching process may recover, is in the nature of ah agreed valuation, and' in regard to the effect of such a clause we cannot express our view of the law better than in the language of Judge Sherman, in Jones v. Gilbert, 13 Conn. R., 531: “ The valuation given in a receipt for property attached lias ever been justly considered as conclusive upon the parties. So far as the security of the debt, is its object it is intended as a stipulation. Even receipts for property which had no existence have been deemed an estoppel in relation to the rights of the creditor. The officer becomes responsible' to the creditor for the amount thus stipulated if there is no subsequent depreciation. These agreements are voluntary and lawful. To nullify them would divest the parties of the important liberty of making arrangements for their mutual benefit at a crisis deeply interesting to both.”

We advise no new trial.

In this opinion the other judges concurred; except Park and Poster, Js., who did not sit.