Parker v. Wright

• Decision Date: 09 January 1877
• Citation: 66 Me. 392
• Parties: THOMAS M. PARKER v. WILLIAM W. WRIGHT and A. & P. COBURN, trustees. 1876.
• Court: Maine Supreme Court

66 Me. 392

THOMAS M. PARKER v. WILLIAM W. WRIGHT and A. & P. COBURN, trustees.

1876.

Supreme Judicial Court of Maine.

January 9, 1877

ON EXCEPTIONS, arising under a trustee disclosure.

Abner Coburn, in behalf of the trustees, disclosed that they employed the firm of Wright & Blackwell, in a logging operation amounting to $6,519.23; that before the service they had advanced $4,306.68, leaving a balance of $2,212.55 to be paid to Blackwell & Wright; that he was informed and believed at that time there were company debts due and outstanding against Blackwell & Wright, growing out of the operations, amounting to $2,250; that since the service he sent to Blackwell & Wright by mail, to pay help, $300 and that he had paid Blackwell $1500 to pay partnership creditors, and believed the sum had been so appropriated.

Harmon Blackwell, partner of Wright, asked to be permitted to file allegations, claiming the proceeds of the demand disclosed by the trustees, as necessary to pay partnership debts for which he is liable. The presiding justice refused to allow the allegations to be filed, and charged the trustees in the sum of $750, to both of which rulings, the trustees alleged exceptions.

S Coburn, for the trustees.

B E. Pratt, for the plaintiff.

The remedy of the creditors, if any there were, against the copartnership, if any there was, was by suits against both its members, summoning the same trustees. The court would then have been called upon to determine who had the better title to the fund. Whitney v. Munroe & trs., 19 Me. 42. Thompson v. Lewis & tr., 34 Me. 167. Smith v. Cahoon & tr., 37 Me. 281. Burnell v. Weld & trs., 59 Me. 423.

DANFORTH J.

The disclosure of the alleged trustees in this case, shows that the principal defendant is a member of the firm of Blackwell & Wright, and the only property which they had in their hands was a debt due to the firm. It also shows that the indebtedness of the firm was somewhat larger than the claim against the trustees. These facts are stated partly from the personal knowledge of the alleged trustee who makes the disclosure, and partly from information and belief. The belief in the truth of the information, is stated under oath; it therefore becomes a part of the disclosure, and must be taken as such. Chase v. Bradley, 17 Me. 89. Willard v. Sturtevant, 7 Pick. 194-7. Kelly v. Bowman, 12 Pick. 383. It thus appears from the disclosure, that the other partner, Blackwell, has an interest in the funds disclosed. If not so, the plaintiff or defendant under proper allegations, could have shown the facts. R. S., c. 86, § 29.

In this state of the case, Blackwell appeared voluntarily claiming the proceeds of the demand disclosed as necessary to pay the partnership debts, and asked to be permitted to file allegations, and, though not so stated we must presume, for the purpose of showing his claim well founded. He was not permitted to do so, and the trustees were charged. To both of which rulings, exceptions were filed. If the first ruling was wrong, the second was, also. If Blackwell had a right to be heard, being excluded, the judgment would not be binding upon him; and the trustees should have been discharged. Burnell v. Weld, 59 Me. 423.

Ought Blackwell to have been admitted a party to the suit? By R. S., c. 86, § 32, " when it appears by the answers of a trustee, that any effects, goods or credits in his hands are claimed by a third person in virtue of an assignment from the principal debtor, or in some other way, the court may permit such claimant, if he sees cause, to appear. If he does not appear voluntarily," he may be cited, & c. On appearing, he may become a party to the suit so far as his title may be in question, and " allege and prove any facts not stated or denied in the disclosure of the trustee."

It will be seen that the words of the statute, " or in some other way," are sufficiently broad to include any way in which the claimant can show a title, no matter how it may have arisen, or in what form it may be presented, provided it is such as the law will uphold.

This case, then, involves the question, as to how far one partner may claim a debt due the firm, as against a creditor of the other partner, who has attached the debt in a trustee process.

That the interest of one partner in the tangible property of the partnership may be attached and sold in payment of his private debt, must be considered as well settled, perhaps wherever the common law prevails. In this state it seems now to be well settled, that his interest may be attached for the same purpose in a trustee process, though in other states a different doctrine prevails, on the ground that a joint debt cannot thus be severed.

Formerly, in the case of tangible property, where the partnership consisted of two persons, under an attachment and seizure, the creditor would hold one-half the property, not because the debtor necessarily owned that amount, but rather on account of the difficulty and delay in ascertaining the separate partner's interest; as that could be done without the consent of the parties interested, only by a process in equity. But as wiser counsels prevailed, it was considered that difficulties and delays were no excuse for injustice, a different doctrine was adopted, and it is now well settled that a creditor of one partner can take only the actual legal interest of that partner to pay his private debt. The purchaser at the execution sale takes the place of the debtor and, his interest, whatever it may be, after the affairs of the partnership are settled, with all the liabilities and uncertainties attendant upon that settlement. This avoids the injustice of taking the property of one to pay the debt of another; while the creditor, though he may complain of the difficulties and delays, in reaching the desired end, must submit, as the remedies are such as, and the best that the law has provided for him, in common with all citizens, to protect their rights, as well as enforce their claims. This matter has been fully and sufficiently discussed in Collyer on Part., 4th Am. ed. 735, and notes; Story on Part., 6th ed., §§ 261-264, and notes; 1 Am. Lead. Cases, 470; 2 Lead. Cases in Eq., 3d ed. 336. To ascertain this interest of one partner, the priority of joint creditors and the rights of the other partners are fully recognized and respected. Smith v. Barker, 10 Me. 458. Douglas v. Winslow, 20 Me. 89. Pierce v. Jackson, 6 Mass. 242. Tobey v. McFarlin, 115 Mass. 98, 101.

Such being the rule in relation to attachment and sale on execution, founded, as it is, upon well recognized principles of law and justice, and enforced by such process as is common to all, we see no good reason why it should not be applied to that kind of property which can only be reached by a trustee process. There is nothing in the form of this process which should give it in this respect an advantage over the other. A debt due the firm is as much a part of its assets as any other property, and in its disposition is subject to the same laws; and the...