Stanton v. Lewis

Hinman, J. The debt which was recovered in this action was originally due to Moseman & Sturdevant. On the dissolution of that firm the co-partners authorized Henry L. Sturdevant, who was one of the members of the firm, to sell and dispose of the property and assets of the copartnership, and to settle all its concerns, collect all bills, notes or book-debts due the concern, and for that purpose, or any purpose legally connected therewith, to use the copartnership name. It was by virtue of this power that Henry L. Sturdevant sold and assigned the debt to Elias Sturdevant the insolvent ; and the first, question is, whether this power authorized such a sale. We think it did. The words of the instrument are very general. He is authorized to sell and dispose of the property and' assets of the copartnership. When we speak of the property and assets of a copartnership, or of an estate, the choses in action are always included, and such is the legal signification of the words, “ property” and “ assets.” Property of course must include every thing that is the subject of ownership; and the word “ assets,” though more generally used to denote every thing which comes to the representatives of a deceased person, yet is by no means confined to that use, but has cometo signify every thing which can be made available for the payment of debts, whether belonging to the estate of a deceased person or not. Hence we speak of the assets of a bank or other monied corporation, the assets of an insolvent debtor, and the assets of an individual or private copartnership; and we always use this word when we speak of the means which a party has, as compared with his liabilities or debts. But it is said that upon the face of the power under which this sale and assignment was made, the words were used to denote personal chattels, as distinguished from choses in action, because the same instrument contains a power “ to collect all bills, notes or book-debts due the concern.” No doubt the intention of the parties must be collected from the whole instrument. But there is nothing repugnant or unusual in an agent’s having authority to sell, and also to collect, a chose in action ; and when it is considered that this agent [450] was equally interested with his former copartner in all the property, and that it was an object to convert it into money for the purposes of distribution, or for the payment of debts, we do not think there was any thing extraordinary in having these powers conferred upon him. It appears to us, therefore, that there is nothing which can defeat the plain intention of the parties, as it is expressed in this instrument, to confer the power to sell and assign, as well as the power to collect, the ehoses in action belonging to this firm. The other question in the case is, whether the plaintiff has adopted the proper form of action in this instance. As this was originally a book-debt, in favor of Moseman & Sturdevant, which was only assignable in equity, no doubt their assignee, Elias Sturdevant, if he had before his failure put the claim in. suit, must have sued it in the name of the original creditors. But the statute in relation to the settlement of insolvent estates, assigned for the benefit of creditors, seems to transfer to the trustee a legal title to all ehoses in action, whether negotiable or not under other statutes, and whether they stand in the name of such debtor or of any other person. It expressly provides that “ the trustee of any estate in settlement under the provisions of this act, may bring any suit or suits that may be necessary in the settlement of said estate, upon any contract, book account, or claim of any kind belonging to said estate, and accruing to him in his right as trustee, in his own name as such trustee, whether such contract, book account, or claim stand in the name of such debtor or of any other person.” Stat. (Ed., 1854,) p. 521, § 16. This statute certainly authorizes the suit to be brought in the name of the trustee. Indeed, this does not appear to be controverted, but it is insisted that this is an action of book-debt, and that book-debt will not lie, although the original claim was a book-debt. It is true that the debt is described in the declaration as due to the plaintiff as trustee by book, and profert is made of the plaintiff’s book as such trustee ; but then the facts are all set out in the declaration. It is averred that the debt was originally due from the defendant to Moseman & Sturdevant; the [451] persons who composed that firm are particularly described ; the manner in which the debt accrued to the firm is stated ; also the transfer and assignment of the debt by that firm to Elias Sturdevant, the assignment by Elias Sturdevant to the plaintiff, and notice of both these assignments to the defendant, before any payment of the debt by him ; also the non-payment of the debt either to the plaintiff or to any of the previous parties at the times when they respectively held the claim. Here are all the facts stated which go to make out the plaintiff’s claim; and although it was unnecessary to make profert of the book which the plaintiff had, as trustee, yet we do not consider that this circumstance alone is sufficient to characterize the action as an action of book-debt. We look upon it rather as an action upon the statute, and as such it certainly contains every allegation essential to the plaintiff's right of recovery ; and in this aspect the profert of the plaintiff’s book may be rejected as surplusage. The book is stated to be the book of the plaintiff, as such trustee, and whether this is understood to refer to the original book of the partnership or to the plaintiff’s private trustee book, there is nothing in the reference which is inconsistent with the other facts stated out of which the plaintiff’s claim arises, so as to constitute a misdescription of the cause of action. Upon the whole case, therefore, we think there is no error in the judgment complained of. In this opinion the other judges concurred. Judgment affirmed.