Haslet v. Kent

• Decision Date: 26 February 1894
• Docket Number: 187
• Citation: 28 A. 501,160 Pa. 85
• Parties: Haslet et al. v. Kent et al., Appellants
• Court: Pennsylvania Supreme Court

28 A. 501

160 Pa. 85

Haslet et al. v. Kent et al., Appellants

No. 187

Supreme Court of Pennsylvania

February 26, 1894

Argued February 8, 1894

Appeal, No. 187, July T., 1893, by Samuel C. Kent et al trading as J.N. Remsen & Co., Ltd., from order of C.P Chester Co., Jan. T., 1893, No. 76, making absolute rule for judgment for want of sufficient affidavit of defence in favor of Haslet, Flanagan & Co. Affirmed.

Rule for judgment for want of sufficient affidavit of defence in assumpsit on promissory note.

From plaintiff's statement and the record, it appeared that defendants were sued as general partners. They alleged that they constituted a limited partnership association. In their affidavit of defence they set forth their certificate of association, and the schedule of property attached. The material portions of the certificate and schedule are quoted in the opinion of the Supreme Court.

Rule absolute, in an opinion by HEMPHILL, J.

Error assigned was above order.

Judgment affirmed.

George B. Johnson, for appellant, cited: Act of June 2, 1874, P.L. 271; May 1, 1876, P.L. 89; Globe Refining Co.'s Estate, 151 Pa. 561; Cock v. Bailey, 146 Pa. 328; Laflin & Rand Co. v. Steytler, 146 Pa. 443; Rehfuss v. Moore, 134 Pa. 462; Andrews v. Schott, 10 Pa. 54; Cox v. Watts, Twells & Co., 157 Pa. 93; Lauder v. Logan, 123 Pa. 34.

J. Frank E. Hause, R. Jones Monaghan with him, for appellee, cited: Acts of June 2, 1874, P.L. 271; March 21, 1836, P.L. 143; Andrews v. Schott, 10 Pa. 47; Rehfuss v. Moore, 134 Pa. 462; Vanhorn v. Corcoran, 127 Pa. 267; Maloney v. Bruce, 94 Pa. 249; Eliot v. Himrod, 108 Pa. 569; Sheble v. Strong, 128 Pa. 316; Gearing v. Carroll, 151 Pa. 79.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

The defendants, sued as general partners, denied their liability as such and claimed to be a limited partnership association properly organized under the act of June 2, 1874, P.L. 271, and its supplement of May 1, 1876, P.L. 89. They thus assumed the burden of setting forth in their affidavit of defence such compliance with the provisions of the act as entitled them to the benefit of exemption from liability as general partners. Instead of doing so, however, we think their affidavit discloses noncompliance with the requirements of the act and its supplement in two important particulars: (1) That at least part of the property alleged to have been contributed as capital is not such property as is contemplated by the supplement of 1876; and (2) that they have not properly scheduled all the property which is alleged to have been subscribed or contributed to the capital of the association.

In Exhibit D, which is attached to and made part of the affidavit of defence, it appears that "the total amount of capital subscribed is $3,900, all of which was fully paid in cash or personal property into the R.B. Chambers Company, Limited, as described in said articles of association, and is now represented by the personal property hereinafter scheduled; and the respective rights, interests and shares of the aforesaid members to and in the said association, and the capital and profits to be derived therefrom, are as follows: Samuel Kent, 16 shares;" to which is added the names of the remaining six subscribers and the number of shares subscribed by each respectively. As stated in the certificate, the amount of capital subscribed for by each is as follows: "The said subscribers having purchased the personal property of the R.B. Chambers Company, Limited . . . and assumed the payment of all the liabilities of the said R.B. Chambers Company, Limited, have contributed the said property, fully described in the schedule hereto annexed, to this company, subject to the payment of the liabilities of the R.B. Chambers Company, Limited."

The schedule referred to is headed thus: "Schedule of personal property contributed by Samuel C. Kent, Thomas Gawthrop, John N. Remsen, Samuel K. Chambers, John J. Chambers, George R. Chambers and Mary R. Jackson, having been purchased by them of the R.B. Chambers Co., Limited, subject to the payment of its debts and liabilities, and in the same manner with all the bills receivable and book accounts, late of said company, contributed to J.N. Remsen & Co., Limited, as part of the capital of said association, as follows:"

Then follows an itemized inventory and appraisement of numerous articles of personal property aggregating $3,874.90. To this is appended the following:

"Summary Statement.

Capital invested

$3,900.00

Notes and accounts payable

2,468.92

Profit in stock

21.01

$6,389.93

Stock per inventory

$3,874.90

Bills receivable

2,206.17

Cash in bank

308.86

$6,389.93"

It is manifest from their own showing that much of the socalled property subscribed and contributed by the defendants to the capital of the association in question, is not such property as is contemplated by the supplement of 1876. The personal property purchased from the R.B. Chambers Company, subject to the debts and liabilities of that company, means what may be left, if anything, of the assets of the said company after all its debts and liabilities are paid. Such property as that is of no avail in aiding the business or paying the creditors of the J.N. Remsen & Co Limited. At best, it is not presently available, and may never be. In Vanhorn v. Corcoran, 127 Pa. 255, one of the scheduled items was: "Isaac N. Kline et al., doing business as A.H. Heilman & Co., paid in merchandise, lumber, book accounts and bills receivable, transferred to this association, $21,609.18, and in cash $3,390.82, making a total subscription of $25,000." Referring to this item, Mr. Chief Justice PAXSON said: "A creditor...