Beaton v. Wade , 14 Colo. 4 ( 1890 )

Chief Justice Helm

delivered the opinion of the court.

The complaint avers that a full and final settlement of all the partnership affairs had taken place between the surviving partner and defendant, as administrator of the egtate of the deceased partner. This averment is denied and squarely put in issue by the answer, but no proof whatever was offered upon the subject. Plaintiff, therefore, is certainly in no better position than if his pleading had left the matter unmentioned. And the record nowhere advises us that the firm assets in the hands of the surviving partner were not sufficient to satisfy plaintiff’s demand. But; so long as the partnership assets are ample, a debt of the firm ex contractu cannot be made out of the separate estate of a deceased partner. Charles v. Eshleman, 5 Colo. 107. See note 9, *597, Lindl. Partn.

Plaintiff, however, asserts that the present action is maintainable under the rulé that, where a tort in the line of partnership business may be legally, imputed to the partnership, especially if the firm receives benefit therefrom, the partners are each individually liable therefor. Lindl. Partn. *198, *283, and notes; Story, Partn. §§ 166, 167; Durant v. Rogers, 87 Ill. 508. Counsel advances the theory that there was a wrongful conversion by Fish & Beaton of goods, or proceeds therefrom, belonging to plaintiff. It is sufficient answer upon this branch of the case to say, as will more fully hereafter appear, that there is no evidence tending to establish such conversion.

It is difficult to determine from the record before us the exact conditions of the transfer to Fish & Beaton of the goods in question. . But, discarding for the present defendant’s claim of an absolute sale, and construing the pleadings, tbe evidence, and special findings of the jury, most favorably to plaintiff, we cannot sustain the judgment.

No verbal proof was offered showing, or tending to show, the real value of the stock of merchandise. The consideration mentioned in the bill of sale was $2,500 — a sum that must have been above rather than below such value. Fish & Beaton were authorized to take possession, and proceed to dispose of the goods in the ordinary course of trade. They were either to sell all, and from the proceeds discharge the firm indebtedness of plaintiff, with interest, and reimburse themselves for reasonable expenses incurred, paying the balance, if any, received from the sale over to plaintiff, or they were to sell enough only of the goods to pay these debts and expenses, and return the surplus thereof, if any, to plaintiff.

It is a matter of no consequence which of the foregoing arrangements was really adopted. Assuming, for present purposes, that the action would lie against defendant alone, still, before plaintiff could recover upon the theory of a firm liability, either ex contractu or ex delicto, it was incumbent upon him to show that the firm had a surplus, either in money or goods, as the case might be, belonging to him, or that it was guilty of bad faith, whereby he suffered injury. He made no effort to prove either of these things. He did not establish, or try to establish, the fact, even, that the proceeds realized from the sale were sufficient to discharge the mortgage debt and expenses; nor did he offer to prove any payment, or tender of payment, by himself, otherwise, of this debt. His original aggregate liability to the firm was fixed at $1,243; and, considering the character of the goods, the expenses incident to handling them, and the uncertainties of the retail market, it might not have been inconsistent with good faith if there were no such surplus to be accounted for.

We do not notice the three remaining causes of action stated in the complaint. They were put in issue, but upon the trial no evidence was offered by plaintiff in support thereof. The judgment is reversed.

Reversed.