In re Lemerise

• Decision Date: 26 August 1901
• Citation: 73 Vt. 304,50 A. 1062
• Court: Vermont Supreme Court
• Parties: In re LEMERISE et al.

50 A. 1062

73 Vt. 304

In re LEMERISE et al.

Supreme Court of Vermont. Chittenden.

Aug. 26, 1901.

Appeal in chancery, Chittenden county; Taft, Chancellor.

Petition in chancery by one Temple against the firm of A. E. Lemerise & Co. for the appointment of a receiver and dissolution of the partnership. From an order disallowing claims against said firm presented by C. J. Ferguson and Collins Bros., claimants appeal. Reversed.

Argued before ROWELL, TYLER, MUNSON, and WATSON, JJ.

Brlgham & Start, for orator.

Clarence J. Ferguson, for claimants.

WATSON, J. A. E. Lemerise & Co. purchased of Collins Bros, their drug store at the agreed price of $1,536.53, and paid thereon, in goods, mortgage note, checks, and cash, the sum of $1,048.58, leaving a balance due of $487.95. Collins Bros, were then owing the Columbia Distilling Company exactly the last-named sum for intoxicating liquors unlawfully sold Collins Bros, by the distilling company; and the claim therefor was in the hands of the claimant Ferguson, as an attorney, for collection. This debt was assumed by Lemerise & Co., and they executed their promissory note therefor, payable to P. H. Collins, one of the members of the firm of Collins Bros., who transferred it to Ferguson. The note is owned by the distilling company. It is held by Ferguson, as an attorney, for collection, and it is the one here in controversy. Collins Bros, presented a claim for $487.95 to be allowed as the balance due them for the drug store in case the note should be disallowed. The chancellor considered and adjudged that Lemerise & Co.'s assumption of the debt due from Collins Bros, to the distilling company was, as to Collins Bros., a payment of the balance due for the drug store, that the note was given for an unlawful consideration, and therefore that the note and the claim presented by Collins Bros, be both disallowed. In the disallowance of the claim, we think there was error. The record does not show that in the transaction between Collins Bros, and Lemerise & Co. It was agreed or intended that the latter's assumption of the debt from the former to the distilling company should operate as a payment of the balance due for the drug store. Nor do the facts stated have that effect. If such had been the agreement or intention, a different question would be presented,—the question whether the assumption of a debt contracted in violation of the criminal law of the state, and by statute made illegal, can by agreement or intention...