Calvert v. . Miller

Smith, C. J. (after stating the facts). The record shows that a single ruling in law is brought in controversy, and that is, the right of those debts incurred by the surviving partner, in prosecuting the joint business in order to an advantageous settlement of the partnership affairs, to share with such as were contracted in the life time of both, in the distribution of the partnership assets. *603 Assuming that the continuance of the business was in good faith, and with reasonable grounds for expecting better results than could be obtained by a prompt sale of the common property, with unfinished work and unused material on hand, we do not think the defendant was bound to pursue the latter course, with its apprehended sacrifices. A surviving partner must proceed to settle up the joint estate and business devolving upon him, in the manner deemed most conducive to the interest of all. Any further operations he may have, must be directed to the primary and controlling object of a prompt and early settlement and disposal of the funds. “Although as to future dealings,” remarks StORY, “thepart-nership is terminated by the death of one partner, yet for some purposes, it may be said to subsist, and the rights, duties, powers and authorities of the survivors remain, so far as is necessary to enable them to wind up and settle the affairs of the partnership.” Story Part, §344. The author does not pretend to say that such survivor can enter into a contract that shall personally bind the deceased partner or his estate, for the power to do this, ceases with the dissolution, but that expenses incidental to the settlement, and properly incurred in making it, are a charge upon the effects of the firm, and will be paid out of them. In the case of an executor, who, in executing the trusts imposed by the will, outside of those that pertain to the general duties of administration, incurs expense, the payment is recognized as a proper credit, and even the creditor is allowed to assert his claim to the fund made or argumented by his services, as we have decided in Edwards v. Love, at this term. We have not adverted to the point made in the appellants’ brief, not embodied in the exceptions, as to the efficacy of the deeds made by the defendant McKee, of May 20th, and August 31st, to the defendants Miller and Sharpe, to indemnify them, as sureties on his individual note, executed to the late Anderson Mitchell, for money borrowed to put in, and put in the firm, at its *604 formation, as a means of its discharge, because that question is not presented in the case on appeal. It may be, that such disposal and use of the money by the firm, would recognize a liability, sufficient to warrant an appropriation of the partnership effects to its payment, as attempted in the deed. But we forbear all expression of opinion upon the point, as well as upon the right of the surviving partner, unrestrained by the representative of the deceased, to dispose of the funds, in payment of his personal liabilities. This debt is omitted in the final judgment directing payment of the specified debts out of the funds, more than sufficient for the purpose, but to this no specific exception is taken. Judgment will accordingly be entered in favor of the several creditors, against the defendant McKee, Miller and Sharpe, for the respective sums due them. There is no error in the rulings brought up for review, and they are affirmed. No error. Affirmed.