Warren v. Wallis, Landes & Co.

38 Tex. 225 | Tex. | 1873

Walker, J.

This is an action to try the right of property. Jacob S. T. Green in his lifetime was a partner with Oscar Sullivan in the sutler business. Sullivan owed an individual debt to Wallis, Landes & Co., the appellees, who sued out an attachment in the District Court of Galveston county on the eleventh day of May, 1869, and caused it to be levied on the sutler’s store of Sullivan & Green, to the extent of one-half the amount of the goods. Green claims that his partner, Sullivan, had no interest in the goods at the time, that they had lost money by their business, that Sullivan was behindhand with the firm, and that their stock on hand was not sufficient to pay the partnership debts and Sullivan’s debt to the firm.

It is a principle of law well settled that an individual partner has no separate or exclusive right to any part or portion of the partnership assets rather than to any other part or portion. The partners have a common interest in all the assets. No one partner being allowed to claim a separate interest, it follows that his creditor cannot execute and sell a separate interest, whilst the undivided interest may be reached in equity.

The ownership of one partner in the property of the firm is subject to the like ownership of all the partners, who hold subject to each other’s ownership.

Parsons says, in his work on Partnerships, “It must be remembered, not only the ownership of each partner is subject to the ownership of all the others, but that all the partners together hold the property subject to the right and obligation of the partnership, as a body per se, to apply all its funds to the payment of all its debts.” (See Washburn v. The Bank of Bellows Falls, 19 Vt., 299.)

This being the law, an attachment could not lie against the common property for the separate debt of one of the partners, so long as that partner is indebted to the firm, or the firm indebted to third persons.

This case has been, twice tried by a jury, the appellees recovering in both instances. For this we are unable to account, for the evidence does not show that Sullivan had one dollar of interest in the partnership stock that was not necessary to pay his own debts to the firm of Sullivan & Grreen, or t'o pay the debts of the firm.

Counsel appear to have understood the manner in which this case should be tried.

The onus was on the appellees of proving that Sullivan had an interest in the stock, over and above his debts to the firm, and the debts of the firm to third persons, and by consent ¿of counsel the case was so tried below, the appellees taking the opening and closing. But the court did not instruct the jury as to the proof necessary to entitle the appellees to recover; the charge virtually relieved the plaintiff below from making any proof, necessary to entitle him to recover.

The obvious import of the charge was that Grreen, the claimant of the property, must make out affirmatively the want of any interest in Sullivan. The truth is, the evidence does make this out by an overwhelming preponderance, and we can only account for the verdict upon the supposition that the jury was misled by the charge.

A verdict so manifestly against the evidence should not only be set aside once, but as often as may be necessary in order to reach the ends of justice.

It was error to overrule the motion for a new trial.

The judgment is reversed and the cause remanded.

Reversed aed rewarded.