Wright v. Herrick

Endicott, J. It appears from the bill of exceptions that the debts of the plaintiffs and Plumstead were contracted in the name of Henry Phillips, who had consented to the use of his name by William W. Phillips and Martin in making purchases. Both the plaintiffs and Plumstead trusted Henry Phillips, and the goods were sold on his credit. As to them, therefore, he was undoubtedly a partner, although as between himself and William W. Phillips and Martin he had no interest. He was the nominal and ostensible partner, and the use of his name rendered him liable both to the plaintiffs and to Plumstead. Ex parte Watson, 19 Ves. 459. In an action by the firm, the defendant could set off a separate debt due from Henry Phillips against the debt for which be was sued, the firm being conducted in the name of Henry Phillips only. Collyer on Part. (5th Am. ed.) § 763. Stacey v. Decy, 2 Esp. 469, note; S. C. 7 T. R. 361, note. A dormant partner need not join with the ostensible partner against a person who has dealt with the latter only; and it is at the option of a plaintiff to join the dormant partner as a [156] defendant, or not. Wood v. O'Kelley, 8 Cush. 406. Ex parte Hamper, 17 Ves. 403. Story on Part. §§ 241, 263. The action, therefore, brought by Plumstead against Henry Phillips could be maintained for the recovery of his debt, and an attachment of the property of the firm purchased in the name of Henry Phillips would be good against William W. Phillips and Martin, who had held him out as the ostensible partner and procured the goods upon his credit. It was held in Lord v. Baldwin, 6 Pick. 348, that the creditor of an ostensible partner, who gave him credit as a single individual, was not to be postponed in his attachment upon the goods of the partnership to another creditor, who afterwards attached the same stock for a debt created upon the same credit, though he should have discovered a concealed partner, and set up his claim as a partnership creditor. And it was said by Chief Justice Parker that “ all the creditors sold their goods or made their contracts with the ostensible, visible partner.' They trusted to him personally and to the goods upon which he was trading as his. The dormant partner is brought to light by ex post facto investigation, and he is made responsible, not because he was trusted, but because he secretly enjoyed the profits of the business.” And again he says: “ The question now is, whether, when all the creditors have trusted the man of business and apparent owner of the goods, any one of them, who is behind the rest in his attachment, shall supplant them and gain priority because he has discovered this concealed liability. At the time the debt was created, he stood upon the same footing with the rest; he trusted John Brown and the goods in his possession; so did they. They have taken possession first of the fund which was held out to the public as the means of credit, and it might be, and probably was, in this very case, that the goods attached are the identical goods which they sold to the party sued. There would be then no pretence of equity, and we think not of law, in allowing a preference founded on no meritorious distinction oi circumstances.” In that case several attachments were made in suits against John Brown alone, and a fourth attachment was made upon the same goods against John Brown and Aaron Brown as copartners. It was decided that they were copartners, and it was held that [157] this last attachment did not take precedence of the previous attachments. The only difference between that case and the case at bar is, that the creditors there dealt directly with John Brown and delivered the goods directly to him. In this case the plaintiffs and Plumstead dealt with Henry Phillips through William W. Phillips and Martin, and whether they regarded them as agents, or in what capacity, does not appear; nor does it appear that they knew that the goods were not delivered to Henry Phillips. As the case is presented, it is not to be distinguished from Lord v. Baldwin, above cited. See also French v. Chase, 6 Greenl. 166; 3 Kent. Com. (12th ed.) 65; Story on Part. § 241; Collyer on Part. §§ 822, 948. Plumstead, therefore, would have been entitled under his attachment, which was prior to that of the plaintiffs, to have had his execution satisfied before the plaintiffs, without an amendment of his writ. He lost no rights by amending his writ. The cause of action was not changed, and the amendment could properly be allowed. Gen, Sts. 129, § 41. No notice was necessary to the plaintiff, as he was not injuriously affected by it. Tucker v. White, 5 Allen, 322. The defendant’s deputy, therefore, properly applied the proceeds of the property attached to the satisfaction of Plumstead’s execution, and the presiding judge erred in not ruling as requested. Exceptions sustained.