Adams v. Deckers Valley Lumber Co.

• Decision Date: 14 November 1912
• Docket Number: 1,083.,1,071
• Citation: 202 F. 48
• Parties: ADAMS v. DECKERS VALLEY LUMBER CO. (two cases).
• Court: U.S. Court of Appeals — Fourth Circuit

202 F. 48

ADAMS v. DECKERS VALLEY LUMBER CO. (two cases).

Nos. 1,071, 1,083.

United States Court of Appeals, Fourth Circuit.

November 14, 1912

S. A Powell and Sherman Robinson, both of Harrisville, W.Va (Robinson & Prunty, of Harrisville, W. Va., on the brief) for petitioner and appellant.

I Grant Lazzelle, of Morgantown, W.Va. (Edgar B. Stewart, of Morgantown, W. Va., on the brief), for respondent and appellee.

Before PRITCHARD, Circuit Judge, and WADDILL and ROSE, District Judges.

WADDILL District Judge.

The parties to this controversy are the trustee in bankruptcy of the individual estate of one Creed Collins on the one hand, and the Deckers Valley Lumber Company on the other. Collins, together with Charles W. Sprinkle and Elbert M. Bonner, were partners. They called their firm the Collins Company. It and each of its members as individuals have been adjudicated bankrupts. It is admitted that the appellee is a creditor of the firm in a large amount far exceeding $500. It says that such indebtedness is also the individual obligation of each member of the co-partnership. On this theory it is seeking to participate in the distribution of the assets of Creed Collins. The referee held that it was not entitled so to do. Upon petition for revision the court below reached the opposite conclusion. The trustee in bankruptcy on behalf of the individual estate of Creed Collins thereupon brought the case here both by petition to superintend and revise in matter of law and by appeal. The petition must be dismissed. The judgment complained of was the allowance of a claim of over $500. The trustee was entitled under section 25a of the Bankrupt Law (Act July 1, 1898, c. 541, 30 Stat. 553 (U.S. Comp. St. 1901, p. 3432)) to appeal from it. He could not therefore have it reviewed by petition under section 24b. Matter of the Petition of Loving, Trustee, 224 U.S. 183, 32 Sup.Ct. 446, 56 L.Ed. 725.

The claim in dispute had its origin in a contract to which the appellee is the party of the first part. Such contract bore date May 1, 1907. In it the party of the second part was described as Creed Collins, C. W. Sprinkle, and E. M. Bonner, partners doing business under the firm name of the Collins Company, all of Pennsboro, W.Va. By the contract the party of the first part sold to the party of the second part all the trees on certain described tracts of land, and also much valuable machinery and other personal property. The trees were to be paid for when and as manufactured into lumber. Five thousand dollars of the purchase price of the other property was to be paid in cash, and for the balance the notes of the party of the second part for $500 each were to be given. The first of these notes was to mature in 15 days. Thereafter one note became due on the 15th day of each succeeding month until all had matured. The agreement contained a number of provisions which need not be here mentioned. In it the phrase 'party of the second part' was used some 20 times. In one place the words 'parties of the second part' were employed as in a line or two away 'the party of the first part, a corporation' was referred to as the 'parties of the first part.' In one other place the phrase 'second parties' is found. The record shows that the $5,000 cash called for by the contract was paid by the firm, and that the firm notes were given for the deferred payments. These notes were accepted by the appellee. It never asked for or received the individual notes of the members of the firm. The testimony shows that the firm was then engaged in the business of cutting and manufacturing timber and its members as individuals were not. The appellee says that, while all this may be true, the manner in which the contract was executed shows it was the individual undertaking of the three members of the firm and not a partnership obligation. To the contract each of the parties signed his individual name and affixed his own seal. In that part of the instrument the partnership name is not used. We do not think its omission significant.

In this case the parties thought it desirable to have their contract under seal. There were obvious reasons why it was desirable if not necessary, that the instrument should be sealed. One partner has no authority to execute a sealed instrument on behalf of his copartners unless authority to do so is given him under their...