Dusenbury v. Cantlon

McAdam, Ch. J. The complaint charges that about April 9, 1884, plaintiff, defendant, and one Albert Seligman entered into a contract to purchase certain wire cloth at an auction sale; • that the defendant was to purchase said wire cloth in his own name, but on the joint account of the three,—himself, Seligman, and the plaintiff; each of the three was to pay one-third of the cost; that the cloth was purchased under said agreement by the defendant for $426, one-third of which amount, viz., $142, was paid by the plaintiff to the defendant. The complaint charges that the defendant has sold the said wire cloth, and has received the proceeds, and that the defendant has refused to settle with the plaintiff or return the $142, [100] paid as aforesaid. ' The three parties|were joint owners of the wire cloth, the defendant sold it, and™ became liable to each of the^other two owners[for one-third of the amount realized, if the sale was authorized, and "one-third of the value, if it was not. This jointj ownership did not necessarily make the parties partners (Porter v. McClure, 15 Wend. 187; Sage v. Sherman, 2 N. Y. 427; Boeklen v. Hardenburgh, 60 N. Y. 9). A person whose goods have been wrongfully sold may either sue for the tort in an action of trover, or, if he pleases, claim the amount received for the sale as a debt for money received for his use (Dicey Parties to Actions, London ed. of 1870, p. 20). The sale made by the defendant destroyed the joint ownership of the wire cloth, and left the defendant indebted to each of the other two owners in one-third of the amount of the proceeds. A common-law action is comprehensive enough to afford the necessary relief in such a case; recourse to equity would be useless. No accounting is necessary. If the property realized $300* the defendant owes the plaintiff $100. The complaint sets forth nothing which requires «any other mode of computation. There is no rule forbidding one partner from suing another at law in respect of a debt arising out of a partnership transaction, if the obligation or contract, though relating to the partnership business, is separate and distinct from all other matters in question between the partners, and can be determined without going into the partnership accounts (Crater v. Biniger, 45 N. Y. 545). In the present case, there was no partnership. In Baldwin v. Burrows (47 N. Y. 206) it is said, “ Where several parties agree to purchase personal property in the name of one of them, and to take aliquot shares of the purchase without agreeing to sell jointly, there is no partnership.” Here, there was no agreement to sell jointly (so far as the complaint discloses) and the defendant sold the property without permission. The plaintiff [101] has his remedy at law for the wrong (Dyckman v. Valiente, 42 N. Y. 549). Upon the entire case, I have arrived at the conclusion that the court has jurisdiction of the action; (2) that there is no defect of parties, the plantiff having the right, after severance of joint ownership by sale, to sue for his individual share of the proceeds; (3) that the complaint states a good cause of action. It follows, therefore, that the demurrer must be overruled, with leave to the defendant to withdraw the same within six days and answer over on payment of $10 costs. See Sturges v. Judson, 1 City Ct. R. 256.