White v. Edward Parish

• Decision Date: 01 January 1858
• Parties: SAMUEL A. WHITE v. EDWARD PARISH, ADM'R.
• Court: Texas Supreme Court

20 Tex. 688

SAMUEL A. WHITE

v.EDWARD PARISH, ADM'R.

Supreme Court of Texas.

1858.

Where one partner sells his interest in the partnership property, bona fide, to his co-partner, upon the terms that his co-partner shall pay the debts of the firm, and pay him a certain price for his interest, the assets of the firm immediately become the separate property of the purchasing partner, discharged of any lien in favor of the partnership debts; and upon the decease of the purchasing partner, go to his administrator, subject to the ordinary rules of administration; and cannot be claimed by the selling partner, as surviving partner of the firm; nor can the latter claim that such assets shall be applied first to the payment of the partnership debts.

Appeal from Calhoun. Tried below before the Hon. Fielding Jones.

Petition filed September 11th, 1854, as follows: The petition of S. A. White, of the county of Victoria and state of Texas, complaining of Edward Parish, of the county of Calhoun and state aforesaid, would represent unto your honor, that the said Parish has undertaken, as administrator of Simeon F. Southern, to settle the unfinished business of a co-partnership which heretofore existed between the said Southern and your petitioner; that he has taken the books and papers of said firm, together with all the effects belonging to the said firm, into his possession; and your petitioner complains that the said Parish is abusing the trust with which he is charged by the agency which he has undertaken; for your petitioner would represent unto your honor, that the said S. F. Southern and your petitioner were doing business in co-partnership; that the said partnership was dissolved on the 3d day of July, 1853; that on that day the said partners agreed that the said Southern should close the unfinished business of the said partnership. Afterwards, to wit: on the ____ day of August, of the same year, the said Southern agreed with your petitioner to pay the debts of said firm, and to do all necessary to close the business, and to pay your petitioner four hundred dollars for his share of the profits in the business. Your petitioner would show, that the said Southern was prevented from performing his said agreement by his sudden death, which happened on the 20th September following, or about that time. The said Parish obtained letters of administration on the estate of said Southern, and as such claimed the right to settle the business of said firm of White & Southern, and all the privileges and advantages arising out of the contract; and has and still resists your petitioner's claim to settle the unfinished business of said firm, as surviving partner. Your petitioner would further show unto your honor, that the said Parish, having obtained the possession of the said books and papers of the said firm, under the pretext of closing the business of the firm under the contract made with Southern, is abusing the implied trust with which he is charged; that he has even taken the assets or credits of the said firm as the private property of the said Southern; knowing, at the same time, that the debts of the said firm are unpaid, and that your petitioner is liable for the payment of the same. And your petitioner would further show that the said Parish, intending to defraud your petitioner, obtained an order of the county court, setting apart $2,750 as allowance to the widow and family, out of the first money collected on the inventory or assets, well knowing that the credits of the firm of White & Southern were the only property, except three hundred dollars, or about that amount, shown by the inventory; that the said Parish neglects and refuses to pay the debts of the firm, and pretends that the firm has no assets in his hands, but those set apart to the family and widow of the said Southern; whereas, your petitioner charges, that the assets of the said firm were to a much greater amount than their liabilities. Your petitioner would further show that the neglect of the said Parish to pay the debts of said firm, as by his undertaking he should have done, and the non-application of the said funds of the firm, has been the cause of his being vexed and annoyed with a great number of suits by the creditors of the said firm, and that he has been compelled to pay on account of said debts, a large amount of money as surviving partner, and that he is still liable to other creditors; to the damage of your petitioner in the sum of four thousand dollars. Wherefore your petitioner prays that the said Parish be made a party defendant; that he be cited to appear at the next term of your honorable court, and answer the allegations in the petition alleged; and on the final hearing of this cause, that he be adjudged to pay the debts of the said firm, and that he pay your petitioner the four hundred dollars due him by the contract of the said Southern, and for all damages sustained in the premises; for cost expended in this suit, and for general relief. As in duty bound, will ever pray.

Defendant answered by general demurrer; plea that the property and effects in plaintiff's petition mentioned, are of right the property of this defendant, as administrator of the estate of Simeon F. Southern; plea of general denial; plea that if plaintiff...