Derry Bank v. Davis

Bellows, J. In this case the principal debtors, residing, one in Massachusetts and the other in New-Hampshire, and carrying on the shoe business at Derry, in this State, as partners, made an assignment on the 10th day of June, 1861, describing themselves as partners, but signing their individual names, and not the name of the firm. The assignment purports to grant and assign “ all our property, estate, rights and credits, of every description” — “ to be divided among all the creditors of the said E. W. Davis and Charles E. Davis” ; and the plaintiff, a creditor of the firm, having summoned the assignee as the trustee of the principal debtors, the question is whether the assignment is good and valid as against this plaintiff'. One objection urged by the plaintiff' is, that the assignment does not convey both the partnership and individual property; and unless it does it is clearly invalid under our statute ; because, although it has the character of a general assignment, it would not provide for the distribution of all the debtors’ estate among their creditors. Such is the doctrine, under similar statutes, of Simons v. Curtis, 41 Me. 373, and Wyles v. Beals, 1 Gray 336. The question then is, Does the assignment embrace both descriptions of property ? As a general principle, where two or more persons undertake, at the same time, for the same act, the contract will be deemed joint only, unless the contrary appears by the terms of the promise or the nature of the understanding; as in the familiar cases of bills of exchange, promissory notes, bonds, covenants, &c. 1 Ch. Pl. 41, and cases cited ; Chitty Con. 96. Where the words creating a liability are ambiguous, so that they might be construed either way, then the whole instrument may be examined for the means of determining its construction. Sorsbie v. Park, 12 M. & W. 145, and cases cited, and Chitty on Con. 96. If the terms here were to be regarded as ambiguous, we think there is nothing in the other parts of the instrument to justify a construction that would embrace both partnership and private property. On the contrary, the description of the assignors as partners may well be supposed to denote that in making the assignment they acted as such; and the fact that they signed separately would not, we think, overcome the inference. That such importance can not be attached to. this mode of signing appears from the case of Maynard v. Fellows, 43 N. H. 255. If, indeed, such effect were to be given to the separate signatures, and the statement that they were partners were to be regarded merely as deseriptio personae, as suggested by the plaintiff’s counsel, it would prove too much, by showing that the assignment embraced only the separate property of the partners. But we are inclined to think that the rules which govern the interpretation of executory contracts may properly be applied to those which are executed like the one before us; and as there is nothing to control the terms here used, the assignment must be regarded as embracing only the joint property of the assignors. If the purpose be to assign both the joint and separate property, it is easy to insert it in explicit terms, and such, we think, is the usual practice in such cases. The importance of doing so, in cases of assignments under our statute, is greatly enhanced by the provision which requires a verification [550] upon oath of the fact that all the assignor’s property has been assigned; and to make this provision effective, and to prevent evasion, all ambiguity should be avoided. In the case of Merrill v. Wilson, 29 Me. 58, there was a special partnership conducted in the name of one of the partners, Charles Godfrey, and an assignment was made in his name of all his stock in trade, and all his property of every description, without using any wrords to show that the partnership property was intended to be assigned. It was held that the private property only of the assignor was embraced in the assignment, and that the partnership property was subject to be taken for the debts of the company. See, also, Simons v. Curtis, 41 Me. 373-381. Our conclusion then is, that this assignment is not in accordance with the provisions of our statute, and therefore the assent of creditors can not he presumed. Spinney v. Portsmouth Hosiery Co., 25 N. H. 18; Hurd v. Silsby, 10 N. H. 108. This brings us to the question whether the plaintiff has assented to the assignmeñt, so as to be bound by it. That a creditor may hind himself by his assent to an assignment which is not within the provisions of the statute is unquestionable. The purpose of this law was to restrain the making of assignments which, though apparently general, did not in truth include all the debtor’s property, and which also distributed it unequally among his creditors without their assent; but it was not designed to interfere with the right of the debtor and his creditors, by agreement fairly entered into, to make application of the debtor’s assets to the payment of his debts, in such way as it should be deemed just by them, either by direct transfer of such assets to the creditors, in payment or part payment of their respective claims, or by assignment in trust, and with their assent, to a third person for their benefit. And we conceive it to be quite clear that the power of the debtor and his creditors to enter into a composition by which the debtor shall retain a portion of his assets, and still be discharged on giving up the residue, is not affected by this statute, even though it be done by a general assignment. See Wyles v. Beck, 1 Gray 233; Edwards v. Mitchell, 1 Gray 239. What shall constitute a sufficient assent it is not necessary to inquire, because we think that what is stated is clearly insufficient in any view of the law that has been taken. In Howland v. Binks, 15 A. & E. (N. S.) 713, where an assignment was in trust for such creditors as, within sixty days, should come in and execute the deed, it was held that a verbal statement by a creditor that he was satisfied with it, was sufficient. In the case now before us, although the evidence may show notice to the hank, it shows no action by it whatever, it not appearing that the cashier, in examining the schedule and advising as to the disposition of the assets, acted for the bank. The result is, therefore, that the assignment, not being valid as against this plaintiffj the trustee must be charged. See Hurd v. Silsby, 10 N. H. 108 ; Spinney v. Hosiery Co., 25 N. H. 9.