Coffin v. Douglass

• Decision Date: 18 April 1884
• Docket Number: Case No. 1971.
• Parties: A. H. COFFIN v. E. G. DOUGLASS.
• Court: Texas Supreme Court

61 Tex. 406

A. H. COFFIN

v.E. G. DOUGLASS.

Case No. 1971.

Supreme Court of Texas.

Apr. 18, 1884.

APPEAL from Grayson. Tried below before the Hon. Richard Maltbie.

On the 6th of December, 1882, S. W. Kniffin, of Parsons, Kansas, and W. G. Kniffin, of Denison, Texas, who were partners under the firm name of Kniffin Bros., being insolvent, executed to A. H. Coffin their deed of assignment, whereby Coffin was appointed assignee. Coffin accepted the trust and filed his bond, which was approved and qualified. The assignee took possession of the goods assigned and had them in his possession when defendant Douglass by a writ of attachment, in a cause entitled Keating v. Kniffin Bros., seized the goods without the consent of the assignee, and converted the same to his own use. The goods at the time of their seizure were reasonably worth in the market the sum of about $1,273.26. This cause coming on to be heard without a jury, judgment was rendered in favor of defendant, from which plaintiff Coffin, the assignee, appealed. The character of the assignment is shown by the opinion.

L. L. Maughs and Cowles & Story, for appellant.

Alex. White and Hare & Head, for appellee, cited: Bump on Fraudulent Conveyances, 356; Hooper v. Tuckerman, 3 Sandf., 311; Sangston v. Gaither, 3 Md., 40; Keighler v. Nicholson, 4 Md. Ch., 84; Rosenburg v. Moon, 11 Md., 376; Banitz v. Rice, 14 Md.; Seaving v. Brinkerhoff, 5 Johns. Ch., 329; Scott v. Coleman, 3 Littell, 349; Wilkes v. Ferris, 5 Johns., 335; Weems v. Armstrong, 31 Md., 87; Bump on Fraudulent Conveyances, 429; Donoho v. Fish Bros., 58 Tex., 164;Thomas v. Jinks, 5 Rawle, 221;In re Wilson, 4 Barr, 430;Henderson v. Bliss, 8 Ind., 100.

STAYTON, ASSOCIATE JUSTICE.

The judge, who tried this cause without a jury, found that the deed of assignment conveyed to the appellee the property which belonged to S. W. and G. W. Kniffin as partners, and a judgment was rendered against the assignee on the ground that the deed did not convey the property which belonged to the two Kniffins otherwise than as partners. The deed of assignment contains a provision requiring releases from such creditors as take benefits under it.

In the case of Donoho v. Fish Bros. & Co., 58 Tex., 164, it was held that an assignment made by partners, which did not purport to pass title to all the property owned by the partnership, and by the members thereof in their separate rights, and not exempted from forced sale, could not be sustained as a valid assignment under the act of March 24, 1879.

In that case the deed did not purport to convey to the assignee any other than the partnership property which belonged to the assignors; and it affirmatively appeared that one at least of the assigning partners had a considerable separate estate.

In that case it was said: “If the deed of assignment purported to convey all of the property which belonged to the persons composing the firm, however defective it might be in form, it would pass not only the property which each copartner might own in his individual right, but also such property as they might own as copartners; but a deed which purports to convey only such property as the makers thereof own as copartners, cannot be held to pass the title to any other without making for the makers of the deed a contract which they never intended; this the law does not undertake to do.” The law aids an informal assignment, but does not make one.

It then becomes necessary to consider the legal effect of the deed through which the assignment was made. So much of the deed as is necessary for this purpose is as follows:

“This agreement, made and entered into this 6th day of December, 1882, between S. W. Kniffin, of Parsons, Kansas, and W. G. Kniffin, of Denison, Texas, composing the firm of Kniffin Bros., of Denison, said county and state, of the first part, and A. H. Coffin, of said county and state, as assignee, … witnesseth: that the said Kniffin Bros., for and in consideration of the sum of $5 to them in hand paid by the said second party, the receipt of which is hereby acknowledged, and in consideration of the covenants hereafter expressed, do hereby give, grant, assign and transfer unto the said A. H. Coffin and his assigns all their wares, merchandise, stock in trade belonging to us now in or about the store of Kniffin Bros., any and all of the warehouses used, owned or controlled by us in Denison, Texas, including all properties of all kinds now owned by us, together with our books, accounts, notes, bills, drafts and acceptances, excepting only such properties as are exempt to us by law, and held by us on commission, all subject to such terms as are by law effective, heretofore made and executed by us, to have and to hold to the said A. H. Coffin upon trust,” etc.

The instrument stipulates for a release of the makers as a firm and as individuals by the consenting creditors, and is signed with the full names of both of the partners.

This instrument purports to be the act of each of the persons who composed the firm of “Kniffin Bros.,” and to convey all the property which they owned; but it is insisted that the fact that the partnership name is used in the instrument, in connection with the fact that the instrument purports to convey “wares, merchandise, stock in trade belonging to us now in and about the store of Kniffin Bros., and all the warehouses used, owned and controlled by us, together with our books, accounts, notes, bills, including all properties of all kinds now owned by us, excepting only such properties as are exempt to us,” etc., necessarily restricts the deed to copartnership property.

Such a construction is an exceedingly technical and narrow one. If the instrument were ambiguous in its terms, and susceptible of two constructions, under well settled rules that construction should be placed upon it, if consistent with the language used, which will render it legal and operative, rather than one which will invalidate it. Burrill on Assignments, 456; Wharton v. Fisher, 2 S. & W., 178.

The surroundings of the parties may be looked to in such a case for the purpose of ascertaining what they really intended by the language used. The parties evidently desired to make an assignment under the statute for the benefit of their creditors, and they are presumed to have known that such an assignment as it is claimed was made by them would be invalid and wholly fail to accomplish the purpose which they desired.

The presumption, in the absence of language in the instrument showing a contrary...