French v. Lovejoy

Parker, C. J. The money received by Senter, for the transportation of the mail from Keene to Peterborough, belonged to the partnership of Lovejoy & Holt. That firm caused so much of the contract to be performed, and paid the consideration for it, and it appears from the whole case that it was so regarded and treated by all the parties. Prior to the service of the plaintiff’s writ, they had transferred the bond of Crandall and others to Abiel Lovejoy, with authority to enforce the performance of the service ; but this, of itself, transferred no interest in the compensation to bo received. Crandall & Co. were not to pay the money, and had no control over its payment. They were only bound to perform the service. The order upon Senter, executed at the same time, directing him to pay the money to Abiel Lovejoy, entitled the latter, [461] as between the parties to it, to receive the money. The notice sets forth that it was made for value received ; but no consideration appears to have existed for this order, and no title can be set up to the money, in virtue of it, against the creditors of Lovejoy & Holt. It was a mere direction to Senter to pay over the money to Abiel Lovejoy. The assignment by Frederick Lovejoy, as surviving partner, made on the 28th of December, 1839, in consideration of the indebtedness of the firm and of himself as surviving partner, authorizing A. Lovejoy to receive the money, and to appropriate it to the payment of those demands, being made before the service of the plaintiff’s writ, was a valid assignment as against him to that extent. The property of the partnership might be lawfully appropriated to the payment of the partnership debts ; and F. Lovejoy, as surviving partner, had the right to prefer A. Lovejoy, a creditor of the firm, in that manner. He does not appear to have made the assignment for the purpose of paying his private debt to A. Lovejoy, nor could he lawfully have done so, to the prejudice of the creditors of the firm, had he attempted it. 8 N. H. Rep. 250, Morrison vs. Blodgett ; Lovejoy vs. Bowers, (11 N. H. Rep. 404;) Gow on Part. 318, [293.] The assignment, therefore, cannot avail except to the extent of Abiel Lovejoy’s claims against the partnership. Nor can he retain for the benefit of other creditors of the partnership, who were not parties to the assignment, and to whom (notwithstanding he promised them to pay them any balance he might receive over and above his own claims) he is under no legal obligation. He had no authority to settle and discharge the debts of Lovejoy & Holt, due to others, nor does there appear to have been any consideration for any promise he may have made them. As the claims of A. Lovejoy against the partnership do not appear to amount to the sums received by him, the plaintiff is entitled to the balance : and the only remaining question [462] is, who ought to be charged as trustee, Senter or A. Lovejoy ? If the security of the plaintiff required it, perhaps Senter might be charged, as he received funds of the partnership after the service of the process, and paid over to A. Lovejoy more than the amount which he was entitled to receive and hold against the creditors of the firm. But if both trustees are solvent, it is immaterial to the plaintiff which is charged. He cannot charge them jointly. Senter paid over in pursuance of an order and assignment. And as the amount to which the plaintiff is entitled may depend upon the amount of A. Love-joy’s demands against the firm, and as he would be bound to indemnify Senter, it seems that he ought to be charged as trustee in this case, and Senter discharged.