Kelly v. Baker

Brady, J. An assignment for the benefit of creditors, with or without preferences, made by one or more copartners, without the concurrence, consent, or authority of all, is .absolutely void; (Wetter v. Schlieper, 4 E. D. Smith, 707); and in this case, therefore, the only question presented is, whether the copartner making the assignment had authority thereto. On that subject the papers on which this motion is made disclose the following letter from the dissenting partner, written to his associate, and received prior to the assignment:— November 13, 1857. Adolphe Reynaud, Esq. : Rear Sir,•—I tried in every way to make some arrangements [533] to prevent the failure of our concern; but, being disappointed in my last hope, I could not bring myself to bear the disgrace of a failure; I became disheartened and in despair, so I concluded to abandon all to you, and try to make a living by seeking my fortune in California, or some other place; and some future day I hope to return with sufficient means to pay every debt we owe. Please tell all that we owe that they shall be paid every dollar, with interest.- I hope you may get some one to advance means enough to carry on the business prosperously. I have lost, by loaning money on stocks, notes, &c., some $20,000 and upwards I felt as if I did not care to live, after having everything that I had worked hard to accumulate stripped from me. Hoping that you may get along better without me, I subscribe myself Yours, &c., D. F. Baker. It will be perceived that Mr. Baker “ concluded to abandon all” to his copartner, and “to try to make a living by seeking his fortune in California, or some other place.” This language imports two operations of the mind—one investing his copartner with the whole of the copartnership effects, and the other a determination to seek a livelihood in a distant place, and to yield all control over the partnership property. The partner, thus invested by the surrender of his associate, had power to dispose of the interest of that associate for the best general interest of both, and having made an assignment for the benefit of creditors, without preference, no abuse of the power has taken place, and the assignment should not be disturbed. See Kemp v. Carnley, 3 Duer, 1. Where a power is conferred upon one of several partners to assign the copartnership assets for the benefit of creditors, or such authority can be fairly and justly implied from facts and circumstances, or either, and it be employed as designed, it will not be abrogated by courts of equity. There are, perhaps, in this case, circumstances which contribute much to show an intent on the part of Baker to grant his associate full power and [534] authority to make a general distribution of the partnership effects; but I deem the letter referred to sufficient to uphold the assignment, and decline to allow the injunction. Motion denied.