Hyrschfelder v. Keyser , 59 Ala. 338 ( 1877 )

MANNING, J.—

The contest between these parties is a trial of the right of property founded on a claim by appel-lee, Keyser, to a lot of sawed sticks of timber which had been seized by virtue of a writ of attachment sued out in February, 1871, by appellant as plaintiff, against one Still. Still was, it seems, personally instrumental in having the attachment issued against himself, and levied on the timber. The timber belonged to a partnership of which he was a member, of the firm-name of Still & Judge, who OAvned the saw-mill at Avhich the sticks had been saAved: and the business of the firm from its beginning in December, 1868, had been kept up and its operations sustained, by advances from time to time made by Keyser under an agreement entered into Avith him, by Avhich the timber, Avheu sawed should be sent to him in Florida, to be sold for the repayment of himself and on account of Still & Judge.

There being a cessation in 1870, of the operations of the mill,—and some thirteen hundred sticks of timber (more or less) being afloat in the creek on which the mill was situated, in Escambia county, Alabama,—Judge, learning that his partner, Still, and appellant Avere taking steps to have a large portion of them seized under a writ of attachment to pay a •debt his partner oAved to appellant, Avent to Keyser, to Avhom the firm Avas indebted to an amount betAveen $2,000 and $3,000, and executed to him in the firm name, a bill of sale of the timber;—and the same aa'as soon thereafter branded with the mark by Avhich Keyser’s OAvnership Avas indicated. •Judge did not inform Still or the appellant, Hyrsehfelder, what he had done; though Avhen he found them engaged in suing out an attachment at the house of a justice of the peace, to be levied on the timber, he told them he should go and inform Keyser in order that he might protect his interest in it. The attachment they Avere getting out when this declaration was made to them, was not levied; but another was aftei'Avards issued by the clerk of the Circuit Court of Escambia county, and levied on 559 sticks of the timber, though not until some time after the bill of sale Avas made and all the timber had been marked as Keyser’s. The sticks thus levied on were claimed and obtained by him, and are -the subject of this contention. The bill of sale was as follows;

“Milton, Fla., January 6th, 1871.—For and in consideration of past advances and the further advance of one hundred dollars this day paid us, we hereby sell and deliver to William J. Keyser, thirteen hundred sticks of sawn timber (more or less), now in Mendenhall creek, below' our steam-mill in Escambia county, Alabama.

“[Internal Revenue Stamp.]

“(Signed) Still & Judge.”

The timber that came to the hands of Keyser in Florida, did not, when sold by him reimburse him by about $280; but some of the sticks did not reach him there, else,—he would have been overpaid by a small sum.

On the cross-examination of Still, who was a vdtness for plaintiff, Hyrschfelder, he was asked, in reference to dealings he had with Keyser before he became a partner with Judge: “ How much did Keyser owe you in those transactions before the partnership was created?” to which he “answered from $800 to $1,000.” The question and answer were each allowed against the objection and exception of appellant, Hyrschfelder. And it is here insisted that they should have been suppressed by the circuit judge for irrelevancy. It may be time that the question and answer were not relevant to the matter in issue; but we think it manifest that they could not have influenced the verdict of the jury injuriously to appellant, but rather the contrary; since the fact proved might seem to the jury to justify the endeavors of Still to prevent Keyser from receiving all the timber. And for error without injury, a judgment wall not be reversed.

The only other error assigned is,—that “ the court among other things charged the jury that the instrument read in evidence was on its face a legal and proper bill of sale, and if Keyser and Judge intended it to be and treated it as such, and it was founded on a sufficient consideration, it was valid and passed the title to the timber out of Still & Judge to Keyser, whether the price was agreed on or not, and that if no price was agreed on the law would infer that the market price was to be paid;”—which charge plaintiff excepted to.

In Perkins’ Ed. of Collyer on Partnership, (§ 394) it is said : “ In a very early case ‘it was agreed by the court that the sale of one partner is the sale of them both;’ and in more recent times the power of one partner to bind the firm by simple contract has been continually recognized in cases of sale of the partnership effects. It is within the general scope of partnership authority for one partner to sell and dispose of all the partnership goods in the orderly and regular course of business. He may sell the whole stock in trade at once by a single contract.” Moreover, each partner has a specific lien on the partnership stock, for moneys abstracted by his co-partner beyond the amount of his share.—Id. § 125. And of course, no partner can, without injustice to his co-partner, cause the partnership goods to be appropriated to his individual debts, when they are needed and ought to be applied to the payment of the partnership debts. These are entitled to priority of payment from that source, over the debts of the partners, as individuals.

Now, the timber wbicb is the subject of this controversy had been manufactured for sale. It was intended to be floated to market to bo sold; to be all disposed, of together. And engagements had been made with Keyser, a creditor of the firm, which imposed it as a duty on each of its members to see to it that the timber should go to him. Judge did not, therefore, act in. derogation, of the rights of his partner. Still, in making a bill of sale which while it might interfere with the direction the latter desired the timber should take, yet disposed of it so as to discharge his, as well as Judge’s debt, and that a debt which was entitled to precedence. Judge having as partner the power to sell the timber to Keyser,—we think there was no error in the instruction given to the jury, to aid them in tbeir view of the evidence upon which the verdict was to be founded.

Let the judgment of the Circuit Court be affirmed.