Hawkes v. First Nat. Bank of Greenfield

• Decision Date: 09 October 1928
• Parties: HAWKES v. FIRST NAT. BANK OF GREENFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 545

163 N.E. 249

HAWKES

v.FIRST NAT. BANK OF GREENFIELD.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 9, 1928.

Exceptions from Superior Court, Franklin County; William A. Burns, Judge.

Action by Harry F. Hawkes against the First National Bank of Greenfield, administrator. On defendant's exceptions to the denial of its motion for a directed verdict. Exceptions overruled.

See, also, 261 Mass. 109, 158 N. E. 539,163 N. E. 246.H. Sherman, of Charlemont, for plaintiff.

W. A. Davenport and W. L. Davenport, both of Greenfield, for defendant.

RUGG, C. J.

The plaintiff seeks to recover for personal services rendered by him to a copartnership composed of his father and his uncle, the testator of whose estate the defendant is administrator with the will annexed. That partnership was dissolved by operation of lay by the death of the defendant's testator in 1925. The surviving partner thereupon became vested with title to the property of the firm and was bound to account for its application to the payment of firm debts and to the settlement of the partnership accounts. Wellman v. North, 256 Mass. 496, 501, 152 N. E. 886, and cases there cited; St. 1922, c. 486, § 25(d). Although the natural course in these circumstances may be for a creditor of the partnership to enforce his claim against the surviving partner, he is not restricted to that course under our statutes. It was said by Chief Justice Gray in New Haven & Northampton Co. v. Hayden, 119 Mass. 361, 365, after stating the rule at common law:

‘By our statutes, if one joint contractor dies, his estate may be charged as if the contract had been joint and several, that is, by action at law against his executor or administrator alone.’

That statute, now found in G. L. c. 197, § 8, was applied to the action of a creditor against the estate of a deceased partner in Sampson v. Shaw, 101 Mass. 145, 3 Am. Rep. 327. It was applied to the case at bar when it was here in 261 Mass. 109, 158 N. E. 539.

The question whether a creditor must exhaust his remedies against the surviving partner before proceeding against the estate of a deceased partner, or whether he may resort first to the estate of the deceased partner, has never been discussed in our decisions. The rule in England seems to be settled that creditors of the firm may first sue the estate of the deceased partner, regardless of the question whether the surviving partner is solvent or bankrupt. Devaynes v. Noble, 1 Meriv. 529, 566-570; Wilkinson v. Henderson, 1 Myl. & K. 582, 588, 589; In re Doetsch [1896] 2 Ch. 836. This appears to be the view of the Supreme Court of the United States. Nelson v. Hill, 5 How. 127, 133, 12 L. Ed. 81;Lewis v. United States, 92 U. S. 618, 622, 623, 23 L. Ed. 513. There are other authorities to the same effect. Camp v. Grant, 21 Conn. 41, 57, 54 Am. Dec. 321; Union Trust Co. v. Shoemaker, 258 Ill. 564, 101 N. E. 1050;Wisham v. Lippincott, 9 N. J. Eq. 353;Washburn v. Bank of Bellows Falls, 19 Vt. 278, 287;Irby v. Graham, 46 Miss. 425, 427. There are authorities to the contrary and there is some conflict among the decisions. See, for collection of cases, 2 Rowley on Partnership, 847, notes 38, 39, and 848, note 42; 30 Cyc. 628, note 91 f.

Since there is no limitation in G. L. c. 197, § 8, and since that section has been held applicable to partnerships, it must follow that in this commonwealth the firm creditor is not required first to sue the surviving partner, but may at his election sue first the estate of the deceased partner. The argument has not been urged that the exclusive remedy is in equity.

The exception to the refusal to direct a verdict in favor of the defendant presents in substance the same question decided adversely to the defendant when the...