Kellogg v. Fox & Minogue

The opinion of the court was delivered by Peck, J. When the plaintiff sold his interest in the property and business of the copartnership of himself and Burke to the defendants, Burke still retaining his interest in the business, the stipulation in that contract of sale, that the property thereby sold should remain the property of the plaintiff till the balance of the price was paid, the reservation of ownership, was only of the plaintiff’s interest therein as former partner with Burke. By the transaction the plaintiff ceased to be a partner, and the defendants became partners with Burke ; and these three thereupon took possession of the property and entered upon the prosecution of the business as partners, under the name of Burke, Fox & Co. It appears that while the defendants and Burke were thus carrying on the business, they sold some of the same slate mantels which were embraced in the sale of plaintiff to the defendants, the defendants not having paid the plaintiff the balance of the purchase. For this sale this action of trover is brought. By the sale of the plaintiff of his interest to the defendants, with the reservation as to ownership till the payment of the price, the plaintiff had no more interest in, or power over the property, and Burke no less, than he would have had, had his copartnership with Burke terminated without any sale by the plaintiff of his interest. In such case either partner has the right to sell the co-partnership property. It has been repeatedly decided in this state that, as a general rule, one tenant in common of personal property, is not liable in an action of trover at the suit of his cotenant for selling the common property : although it has been held otherwise, under some circumstances, in some of the states. But as between copartners, after the dissolution of the copartnership, it is clear that each has the power of sale of the copartnership property in the usual course of business, especially property of the character of that involved in this case, procured or manufactured by the copartners for the purpose of sale in the line of their business. The case states that the defendants, by and with [354] the consent and concurrence of said Burke, sold the mantels in question; and it is again stated that “ the property in suit was sold by Burke and the defendants in the usual course of business.” Burke could not be made liable to the plaintiff in an action of trover for this sale; nor can the defendants be thus held liable for their participation with Burke in doing an act which Burke, as between him and the plaintiff, had a right to do, especially as it is found by the county court, “ that the defendants, at the time of said sale, had no intention of appropriating the avails of the sale in any way contrary to the agreement with the plaintiff/’ although they did soon after appropriate the avails to their own use, in violation (as the county court says) of their agreement, and never paid to the plaintiff the balance of the purchase price, as the county court find. The action of trover cannot be maintained in this case, consistently with legal principles applicable to this form of action. We have no occasion to decide whether the evidence as to the verbal agreement made at the time of the execution of the written contract, introduced by the defendant, was properly received or not; as the ground of our decision is independent of that, and in no way aided by it. In affirming the judgment, the court is not to be understood as affirming the ruling of the county court in admitting that evidence, or as deciding that question. Judgment affirmed.