23 Ill. 207 (Ill. 1859), Taylor v. Coffing

Citation:23 Ill. 207, 23 Ill. 273
Opinion Judge:Mr. WALKER, JUSTICE.
Party Name:EDMUND D. TAYLOR v. CHURCHILL COFFING et al
Attorney:Mr. S.W. FULLER, and Mr. C. B. WAITE, for the plaintiff in error. Mr. T. L. DICKEY, and Mr. C. BECKWITH, for the defendants in error.
Judge Panel:JUSTICE WALKER, CHIEF JUSTICE CATON, dissenting:
Court:Supreme Court of Illinois
 
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23 Ill. 207 (Ill. 1859)

23 Ill. 273

EDMUND D. TAYLOR

v.

CHURCHILL COFFING et al

Supreme Court of Illinois, Third Grand Division

April, 1859

WRIT OF ERROR to the Circuit Court of La Salle county.

The facts of this case are fully stated in 18 Ill. 422. A rehearing having been granted, the following opinions were filed.

Mr. S.W. FULLER, and Mr. C. B. WAITE, for the plaintiff in error.

Mr. T. L. DICKEY, and Mr. C. BECKWITH, for the defendants in error.

JUSTICE WALKER, CHIEF JUSTICE CATON, dissenting:

OPINION

Mr. WALKER, JUSTICE.

To determine correctly, the rights of the parties in this case, we must ascertain their intention, in executing the deed of sale by Coffing to Taylor, and the covenant from Taylor to him, of the same date. If this court gave them their true construction, when this case was considered on a former occasion, the conclusion then arrived at is undoubtedly correct. But if their intention was misapprehended, the account then stated between the parties was erroneous to a large amount. Coffing, by that deed, sold to Taylor his interest, as a partner in the firm, by this language: "Has sold, transferred, assigned and set over, and by these presents does sell, transfer, assign and set over to the said E. D. Taylor, his heirs and assigns, all my right, title and interest in and to all property, debts, accounts, notes, books and papers belonging to the firm of Taylor & Coffing (except the indenture given by Coffing to Taylor & Coffing aforesaid,

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which is to stand and remain as it is, unaffected by this deed of sale)," and Taylor, by his covenant of the same date, bound himself to pay all the debts owing by the firm, and also to credit the indenture given by Coffing, as referred to in his deed, by the sum of five thousand dollars, the amount allowed him by Taylor for his interest in the Illinois River Bank, and in the Salisbury Plank Road Company.

It was held in 18 Ill. 492, in giving to Coffing's deed a construction, that it neither passed to Taylor the capital advanced to the firm by Coffing, nor his account with the firm. In that conclusion I am unable to concur.

This deed, by the language employed, undoubtedly passed to Taylor all of his interest, of every description, in the firm, except in the instrument denominated an indenture, which was, on its face, an absolute conveyance of certain real estate, to defeat which, Coffing held a defeasance from Taylor, which rendered it in effect a mortgage. That was the only interest in the firm, whether consisting of property, debts, choses in action, claims or equities, whether between the firm and other parties, or between the members of the firm, in which Coffing had an interest which was reserved. And the very fact that it was reserved, by express language, renders it evident, to my mind, that no other right or interest was intended to be reserved. He transferred his interest in the books of the firm, and if kept in this instance, according to commercial usage, there was opened in them a stock account in the name of each member of the firm, in which he was credited by the capital stock advanced by him, and charged with any portion of it which he may have afterwards withdrawn. And as it was not shown in evidence that such accounts were not opened, the presumption may be indulged that they were opened in accordance with this general commercial usage. If such accounts were opened in these books, they were accounts that every accountant would say must be taken into consideration in making up a balance sheet, on a final settlement of the firm affairs, between the partners. And on such a settlement, Coffing would have had the right to receive the excess of his capital over Taylor's, with interest upon one-half of that excess out of the firm effects, before Taylor received any thing. Coffing would be a credit

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of the firm, on a final settlement of its affairs by the partners, to that extent. He and Taylor, after he had received that amount, would be equal in capital, which would have to be paid out of the property and effects of the firm, and then each would be entitled to one-half of the profits, if any were realized. They were each creditors of the firm, and had an interest in the firm property, debts, accounts, notes, books and papers, to that extent. And when Coffing granted all of his interest in these effects of the firm, I am at a loss to perceive how this interest did not also pass. The language employed is sufficiently comprehensive for the purpose, and the stock is not reserved by the deed. I am, therefore, of the opinion, that he by this deed transferred to Taylor, all right to receive from the firm, or from Taylor, any portion of the capital stock advanced by him. If it was not intended to pass, why was it not reserved in the deed, as was the mortgage?

This construction is fully sanctioned, I think, by commercial usage. It is believed the commercial world understands, that when a partner sells his interest in a copartnership without reservation, to a person not a member of the firm, the capital advanced by him passes to the purchaser.

If a bequest were made by a testator, of all his interest in a copartnership, of which he was a member, and the same language were employed, as is in the granting part of this deed, it is believed that no one would contend that the executor, as against the legatee, would have a right to withhold the capital stock advanced by the testator. Or, if the interest of...

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