Daniel v. Daniel

• Decision Date: 22 January 1848
• Citation: 48 Ky. 195
• Parties: Daniel v. Daniel, & c.
• Court: Kentucky Court of Appeals

48 Ky. 195

Daniel v. Daniel, & c.

Court of Appeals of Kentucky.

January 22, 1848

Partners and partnership. Assumpsit.

ERROR TO THE CLARKE CIRCUIT.

Daniel and Peters for plaintiffs.

Apperson and Hanson for defendant.

OPINION

SIMPSON JUDGE.

Case stated.

JESSE DANIEL and William H. Nelson having raised a crop of corn in co-partnership, Daniel, who owned two-thirds, gave to his son, Ellison A. Daniel, about one hundred and eighty barrels of it, who took it into his possession, and appropriated it to his own use.

This action of assumpsit was brought in the name of the partners for the use of Nelson, against Ellison A. Daniel, for the value of the corn, treating him as a purchaser. The plaintiffs, by way of specification of the demand claimed by them in the suit, stated at the foot of the declaration, that the suit was brought to recover Nelson's third of the corn, who to that extent claimed the right to control the suit for his own benefit.

The defendant moved the Court to dismiss the suit, and in support of the motion, read a writing signed by the plaintiff, Jesse Daniel, stating that he had given to the defendant the corn for which he was sued, and requesting the Court to dismiss the suit. This motion was overruled. Whether the Court erred in overruling the motion, is the first question presented.

One partner cannot appropriate partnership effects, without the consent of his co-partners, to the payment of his individual debts. If he should so apply them, his creditor would be liable to the firm in an action of assumpsit for the value of the property: Dob vs Holsey, (16 Johnson's Rep., 34.)

If one partner, without the consent of the other, appropriate the partnership property to the payment of his individual debts, his creditor is liable to the firm for the value of the property: (16 Johnson 34.) So if he do it against the will of the other.

If one partner cannot convert or use partnership property against the will of his co-partners, for the payment of his individual debts, for the same reason, he cannot make a valid gift of it, to the prejudice of the other members of the firm, and in opposition to their wishes.

Each partner has an implied authority to dispose of the partnership property in the course of the partnership business. But a gift of the property, or a sale of it for the payment of the separate debt of one of the partners, not being within the scope or design of a partnership business, nor having the appearance of being made on behalf of the firm, is not valid, if made against the will, and without the assent, express or implied, of the other co-partners.

Each partner has an implied authority to dispose of the partnership property in the course of the buisness, but not to give it away or to pay their individual debts with it--such is not a disposition within the scope of partnership purposes.

One partner should not be...