Williams v. Lewis

• Decision Date: 29 May 1888
• Docket Number: 13,206
• Citation: 17 N.E. 262,115 Ind. 45
• Parties: Williams v. Lewis et al
• Court: Indiana Supreme Court

17 N.E. 262

115 Ind. 45

Williams v. Lewis et al

No. 13,206

Supreme Court of Indiana

May 29, 1888

From the Switzerland Circuit Court.

The judgment is affirmed, with costs.

W. R Johnston, J. D. Works and L. O. Schroeder, for appellant.

J. B McCrellis and G. S. Pleasants, for appellees.

OPINION

Mitchell, J.

Complaint by James W. Lewis, Benjamin W. Simmons and James C. Long against John E. Williams to set aside a constable's sale of certain personal property, and to enjoin the defendant from removing property alleged to have been wrongfully sold to and purchased by him at such sale.

It is charged in the complaint that, in February, 1885, the plaintiffs, as partners, under the name of Lewis, Simmons & Long, were the owners of a stationary steam saw-mill, with engine, boiler, carriage-way, trucks, eleven saws, and other attachments complete, all of which were situate in the city of Vevay, Indiana, and that the partnership affairs remained unsettled, the firm being still indebted to divers persons, whose names are set out.

It is averred that a judgment had been recovered against James W. Lewis, one of the partners, for an individual debt, and that an execution had issued thereon, in virtue of which the constable had seized and sold the engine and boiler, and the saw-frame and eleven saws above mentioned, as the individual property of Lewis.

It is further averred that the only interest which Lewis had in the property so levied upon and sold arose from his being a member of the firm of Lewis, Simmons & Long, and that the only interest Williams had was such as he acquired through the constable's sale above mentioned.

It is averred that Williams and his employees were proceeding to tear down and remove the engine and boiler, and other articles which he assumed to own in pursuance of the purchase made as above, and that to detach and remove those articles would render the residue of the partnership property practically useless.

It was also charged that the defendant, Williams, was notoriously insolvent. Prayer that the sale be set aside and the defendant enjoined from interfering with the property.

Williams answered, among other defences, that the firm of Lewis, Simmons & Long had ceased to transact business about a year before the sale under which he claimed, and that he was not aware at the time he purchased the property that it belonged to the firm of Lewis, Simmons & Long. He alleged further that, before the execution was issued, Lewis claimed to own the whole of the property, and that he was offering to sell it to Simmons. He charged further that, before he bought the property, the constable to whom the execution was issued called upon Simmons and informed him that he had an execution against the property of Lewis, and that he was about to levy on the property now in dispute, and that Simmons informed the defendant and the constable that the property belonged to Lewis individually, with the exception of a few dollars invested therein by the other partners in the way of repairs.

It is averred that Simmons was in Vevay from the time of the levy until the day of the sale; that he knew the property was advertised for sale, and that he made no objection, nor gave any notice of the claim of the firm, and that he again told Williams, on the day of the sale, that the property belonged to Lewis individually.

The court sustained a demurrer to the answer, and the propriety of this ruling is made the principal subject of discussion.

That the interest of one partner in the goods or property of the firm may be seized and sold upon execution for his individual debt, can not be doubted; and it is likewise settled, that, as incidental to the right of sale, the officer may, without interfering with the rights of the other partners, take possession of the interest seized, and deliver it to the purchaser, who takes subject to the rights of the other partners, and to the contingency that an accounting may show that he took no beneficial interest by the purchase. The purchaser can not acquire specific articles of property at such a sale; but, if the creditor of one partner sells his debtor's interest in the firm property, the purchaser may ultimately obtain any surplus that may remain after the firm creditors are paid, and the partnership accounts fully adjusted. Ex Parte Hopkins, 104 Ind. 157, 2 N.E. 587; Deeter v. Sellers, 102 Ind. 458, 1 N.E. 854; Donellan v. Hardy, 57 Ind. 393; 2 Lindley Partnership, 690.

Specific articles of partnership property can not be levied upon and sold to satisfy the individual debt of one partner, and when the officer, instead of selling the whole interest of the execution debtor, sells the whole of certain specified articles of property belonging to a firm, the other owners may treat him as a trespasser, and may enjoin the sale or the delivery of the articles so sold. Stumph v. Bauer, 76 Ind. 157; Branch v. Wiseman, 51 Ind. 1; Moore v. Pennell, 52 Me. 162 (83 Am. Dec. 500, and note); Spalding v. Black, 22 Kan. 55; Atkins v. Saxton, 77 N.Y. 195; Miner v. Pierce, 38 Vt. 610; 2 Lindley Partnership, 690.

Without disputing the propositions above stated, it is contended on appellant's behalf that the declarations made by Simmons, one of the partners, to the effect that the property levied upon and sold was the individual property of Lewis, estopped the former from afterwards asserting, as against the appellant, who bought on the faith of his declarations, that it was the property of the firm. It is insisted, moreover, that notice to Simmons that the property was about to be sold as the property of Lewis was notice to the firm, and that his acquiescence in the sale, and his declarations in respect to the title, not only estopped him, but the firm of which he was a member, as well.

It appears from the pleadings that both Lewis and Long were out of the State at the time, and had no knowledge of the levy and sale; that, although the firm had ceased carrying on its business, the debts had not yet been paid, nor the partnership account settled, nor the partnership property disposed of.

It is undoubtedly true that each partner is, in a qualified sense the agent of his copartners in relation to the business of the firm, and that his acts and declarations in reference to the business in which he is at the time...