Wilson-Obear Grocery Co. v. Cole

Rombauer-, J., delivered the opinion of the court. The plaintiff is a trading corporation, and the defendants are, and were, at the date of the matters complained of, co-partners. The action is by attachment, and one of the grounds assigned in the plaintiff’s affidavit is, that the defendants “are about fraudulently to conceal, remove, and dispose of their property and effects so as to hinder and delay their creditors.” Upon the trial of the plea, in abatement, the plaintiff gave evidence tending to show that the defendants were embarrassed, and expecting the levy of some executions upon their store goods, and that Wm. C. Cole, one óf the defendant partners, offered to hire a man to set fire to the store, which was insured to a considerable amount. There was no evidence connecting the defendant co-partner, Wm. F. Cole, with this attempted wrong. The court refused to charge the jury, upon the request of the plaintiff, that it was not necessary for the-plaintiff to prove “that all the members of the firm were engaged in such attempts or designs,” and did charge the jury, upon the defendants’ request, as follows : “The court instructs the jury that, unless they believe, from the evidence, that both of the defendants, W. C. Cole and W. P. Cole, were attempting to fraudulently dispose of their property, for the purpose of hindering, delaying, and defrauding their creditors, then they will find for the defendants ; that, if they should find, from the evidence, that William C. Cole did .at [7] tempt to hire the witness, Waller, to burn the house, and made propositions therefor, yet, unless they find further, that W. F. Cole was a party thereto, they will find for the defendants.” The refusal of the plaintiff’s instruction, and the giving of that of the defendants, are, among other things, assigned for error. The action of the court upon these instructions was clearly erroneous. The alleged fraud was one touching the partnership property, and was about to be committed, presumably, for the benefit of the partnership. In such cases the partnership is liable for the wrong. 1 Lindley On Co-partnership [4 Am. Ed.] 302; Estabrook v. Messersmith, 18 Wis. 545; Tenney v. Foote, 95 Ill. 101; Boremus v. McCormick, 7 Gill. 49; Durant v. Rogers, 87 Ill. 508; Case v. Fogg, 46 Mo. 44. Since a partner has, by virtue of his position, control of the goods, and may conceal or remove them, or, even without the consent of his co-partner, make a valid disposition of them to third persons, any other holding would put the creditors of a firm at the mercy of a fraudulent partner. For these errors, in giving the instruction of the defendants, and refusing that of the plaintiff, the judgment must be reversed and the cause remanded. It is so ordered. Thompson, J., concurs; Lewis, P. J., is absent.