Rutherford v. McDonnell

Riddick, J., (after stating the facts). The appellant, Rutherford, insists in this case that Mrs. Walkerwitz had no power to sell his interest in the partnership property, and that the chancellor erred in holding that he now had no interest in such property. As the partnership of Walkerwitz & Rutherford was not formed for the purposes of trade, but to cultivate the'lands of Mrs. Walkerwitz, we concur in the contention that she could not sell the live -stock and farming utensils of the firm without the consent of Rutherford. That property was not held for the purpose of sale, and we do not think that power to sell it without consent of her partner can be inferred from the terms of the partnership. Lee v. Onstott, 1 Ark. 206; Drake v. Thyng, 37 ib. 228; Cayton v. Hardy, 27 Mo. 536. It may, therefore, be true that Rutherford was not bound by such sale, and could recover his interest in the property upon paying or satisfying the decree or foreclosure, or so much of it as affects his property. He does not, however, offer to do that, but asserts that the decree has been satisfied in full by the contract and conveyance of Mrs. Walkerwitz, and that he now has an undivided half interest in the personal property of the firm, free from the lien of such decree. We think that the evidence shows that the satisfaction of the decree depended upon the sale of the property, both real and personal, to McDonnell. Mrs. Walkerwitz assumed to be the owner of the property. As no part of the note given by Rutherford for one-half interest in the property has.been paid, the property was treated by both Mrs. Walkerwitz and McDonnell as her property, and she undertook to convey, not a one-half interest in the property, but a title to the whole, in satisfaction of the judgment and decree. If Mrs. Walkerwitz and McDonnell were acting under a mutual mistake as to her ownership and right to sell the property, and Rutherford refuses to ratify her act and make the sale good, McDonnell should be allowed to rescind the sale and set aside the satisfaction of the decree, and the foreclosure decree should be enforced by a sale of the property. Benjamin, Sales, (Bennett’s Ed.) p. 368 and note; Cooper v. Phibbs, 2 L. R. Eng. & Ir. App. Cas. 170. If there was any agreement between Mrs. Walkerwitz and McDonnell as to the price of the land, it might be unnecessary to rescind sale of land, but the price of same could be credited on the decree. The same thing may be said of her interest in the personal property, if there was any agreement as to the price. But the evidence here does not show that there was any agreement between Mrs. Walkerwitz and McDonnell as to the price of either the land or the personal property, but the chancellor disposed of the case upon the theory that Mrs. Walkerwitz could sell the personal property without consulting Rutherford. The judgment-will, therefore, be reversed, and the cause remanded, with an order that Mrs. Walkerwitz be made a party, and for further proceedings. Note. By consent of the parties this case was subsequently affirmed. [Reporter.]