Pond v. Cummins

Carpenter, J. This is an action by an officer on a receipt given for property attached. It was attached as the property of Cummins. The court found that it belonged to Bryan and rendered judgment for the defendants. The plaintiff appealed. The claim is that Cummins had an interest in the property as a partner which was attachable. The claim is made upon the following facts:—Bryan furnished capital for carrying on the saddle and harness business. The business was to be carried on by Cummins, and in his name as agent for Bryan, and he was to receive one half of the profits. In about one month after the business commenced the property was attached. It is very clear that Cummins was not a partner. He furnished no part of the capital and owned no part of the stock in trade. He was not interested as a principal trader, his character was that of an agent or servant of Bryan, and the fair import of the finding is that he received one half of the profits, not as profits, but merely as compensation for his services as such servant or agent. It is elementary law that such an arrangement does not, either in law or in fact, constitute him a partner. Another ground of error is, that the defendants, having agreed in writing to return the property, are bound to do so, and that their failure to do so is a breach of the contract for .which the plaintiff may recover. But this court has held on several occasions that where the defence shows that an officer is not accountable for the property to the attaching creditor, nor to the owner, he cannot recover. Clark v. Gaylord, 24 Conn., 484; Dayton v. Merritt, 33 Conn., 184; Pond v. Cooke, 45 Conn., 126. It appearing in this case that the defendant Bryan is the sole owner of the property, there is a complete defence to the action. There is no error. In this opinion the other judges concurred.