Hacker v. Johnson

• Decision Date: 07 February 1877
• Parties: ISAAC HACKER v. LEWIS B. JOHNSON. 1876.
• Court: Maine Supreme Court

66 Me. 21

ISAAC HACKER v. LEWIS B. JOHNSON.

1876.

Supreme Judicial Court of Maine.

February 7, 1877

ON EXCEPTIONS.

REPLEVIN for goods attached by the defendant as sheriff on a writ of mesne process in favor of Thomas W. Daniel et al. v. James A. Flint and Charles W. Johnson, January 29, 1874. The officer's return showed an attachment of the property of the " defendant Flint, his share and interest as partner, with Isaac Hacker." The case was made law on report; and it appearing that while the action was in the name of Hacker alone, the goods replevied were the partnership property of Hacker and one Charles W. Johnson the full court at the law term 1875, ordered " plaintiff nonsuit." The defendant thereafter filed a motion for return of the goods replevied, waiving all claim to damages. The plaintiff objected to a return and offered to prove in substance the following facts: The goods replevied in the suit, Isaac Hacker v. Lewis B. Johnson, belonged to Isaac Hacker and James A. Flint, partners in trade, and were copartnership property; though valued by the attaching officer at $3670.70, their real value was not more than $3400. The aggregate amount of values of goods and money on hand, and demands and notes due the firm was $5929.83. The indebtedness of the firm to all other persons than Hacker & Son at the time of attachment and replevin was $5568.92. The firm was indebted to Hacker & Son $5891.75 besides a balance of interest of $866, making the total indebtedness of the firm $12,326.67. Flint owed the firm $1636.26. The plaintiff was solvent. The goods replevied were placed back in the store, and with the exception of a few remnants, sold for the benefit of creditors, and the proceeds have gone to pay the debts of the firm. The indebtedness of Flint is still unpaid.

The court, on the defendant's objection, excluded the testimony and ordered a return, and the plaintiff alleged exceptions.

A W. Paine, for the plaintiff.

J. C. Madigan & J. P. Donworth, for the defendant.

PETERS J.

The goods in question belonged to the copartnership of Hacker & Flint. The defendant, an officer, attached the interest of Flint in the goods upon a writ in which was sued a demand against Flint alone. Thereupon Hacker, the copartner, replevied the goods in his own name. The decision of this court has already been that the action of replevin cannot be maintained, and a nonsuit was ordered. The plaintiff now moves against a return of the goods to the officer, offering to show the firm of Hacker & Flint to be insolvent, and Flint's interest to be worth nothing, and claiming that on that account a return would be a useless ceremony and of no value to any party concerned.

There is no doubt that all the interest in the goods that could be taken by the officer was only the right and interest of the debtor Flint therein, after all the partnership liabilities, (including a settlement of the private accounts of the partners,) have been adjusted and paid out of the partnership property and fund. Formerly another mode of remedy prevailed. That is, the private creditor of one partner could take the undivided portion of the partnership goods that belonged to such partner by numerical division. This court, in early cases, has shown some inclination to favor the application of such a rule, though it has never been adopted, perhaps in any case, in its full extent. See remarks of Wells, J., in Thompson v. Lewis, 34 Me. 167, 170. There are several decisions permitting a remedy that bears some affinity to it. Thus in the case cited and in several similar cases, it is held that where one summoned as trustee discloses that he is indebted to a firm of which the principal defendant is a partner, he will be charged unless some interposing claim be made to take precedence of the claim of the creditor of a single partner. Further than this, the court would not now be likely to go. The old doctrine of attaching moieties of interest in personal property, in cases of partnership, has been swept away. All the modern text writers, and almost all the courts, are against it. The cases bearing upon the subject are too numerous to be named. The modern authorities quite universally affirm the modern rule. And it results from adopting as a principle in law what was formerly only regarded as a rule in equity; namely, that each partner has a lien upon the partnership property for his own indemnity against the partnership debts, and for any amount due him over and above what may be due his copartners out of the joint effects. Therefore all the legal interest in partnership property now attachable on a debt of one of the partners is such partner's share subject to all such claims and liens. Nor do we understand that the counsel for the defendant claim more than this, upon their brief.

The manner in which an individual creditor may...