Pelletier v. Couture

• Decision Date: 03 January 1889
• Parties: PELLETIER v. COUTURE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 269

19 N.E. 400

PELLETIER v. COUTURE et al.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1889

January 3, 1889

HEADNOTES

COUNSEL

J.F Quinn, for petitioner.

Charles Sewall, for respondents.

OPINION

DEVENS, J.

This is a petition in the nature of an appeal from the decree of the judge of probate and insolvency for the county of Essex declaring insolvent the partnership of which Pelletier, a minor, had been a member with Couture, and ordering a warrant to issue against the partnership property, and also against the separate estate of Couture. Pelletier and Couture had dissolved their partnership (which was engaged in the furniture business) on the 15th day of November, A.D.1887. Thereafter, some difficulty having arisen between himself and Pelletier as to the payment of a certain claim, Couture filed a voluntary petition that the partnership should be declared insolvent. On the return of the order of notice, Pelletier filed a motion that all proceedings should be stayed and vacated so far as any property of his was concerned, alleging himself to be a minor. Before any adjudication was made by the judge a guardian was appointed for him, and thereafter a warrant was directed to issue against the stock and property of the partnership, and against the separate estate of Couture.

It was not disputed that Pelletier was a minor who had originally put $300 into the firm, and that he had to this extent contributed to the fund from which its assets were derived. The first question, therefore, is whether, upon this proof, it was within the power of the judge to issue a warrant against the property of the partnership; the plaintiff contending that his interest therein could not thus be affected. After the formal dissolution of a partnership, and when the mutual authority of the partners to bind each other has ceased, if there are partnership assets to be administered and partnership debts to be paid to some extent, and for some purposes, the partnership must still continue to exist. It has therefore been held that under such circumstances the creditors of a partnership may institute proceedings in insolvency in invitum; and also that one partner after such a dissolution may, by his sole petition, commence proceedings in insolvency, so as not only to affect his own property and that of the firm, but also the separate property of his late partner. Parker v. Phillips, 2 Cush. 175; Thompson v. Thompson, 4 Cush. 131.

In the case at bar no warrant was issued against the separate estate of the petitioner, but it is his contention that, by reason of his minority, no warrant could properly have issued against the partnership property, as it was his, although in connection with Couture; and that, even if the firm could be declared insolvent, his interest in the partnership property could not be taken to pay the debts of the firm. The plaintiff had, however, no property in any specific assets affected by the warrant against the firm, even if his money had passed into them, and they had been purchased to some extent by it and by the credit thereby obtained. The partnership property (irrespective of his minority) could not have been attached as his. Sanborn v Royce, 132 Mass. 594. Nor could it have been devoted to the payment of his private debts, except subject to the claims against the partnership. He had an interest in it to receive therefrom only what might remain after these were...