Richardson v. Tobey , 85 Mass. 81 ( 1861 )

Bigelow, C. J.

We can see no ground on which it can be maintained that the notes which were given to Tobey and Minot individually, in payment for the capital which they had severally contributed in the form of merchandise to the firm of To-bey, Foster & Co., can be regarded as joint estate of the old firm of Tobey, Sampson & Co., and appropriated to the payment of their partnership debts. The effect of the agreement among the members of the old firm, that Tobey and Minot should be charged with specific sums as their shares of the goods on hand at the time of the dissolution, which they were to contribute as their respective proportions of the capital of the new firm, amounted to a conversion of the partnership property into the separate estate of each of the copartners, to the extent to which they were charged therewith on the books of the firm. It was equivalent to a sale of that amount of joint property to each of them respectively, and having been done bona fide it operated to vest in them individually so much of the joint es* tote. When they transferred it to the new firm it became partnership property, the title of which vested in all the members jointly, and the old copartners retained no right or interest in it as assets of the original firm. They had no lien upon it for the payment of the joint debts. It was the plain intent of the parties that it was to vest absolutely in Tobey and Minot respectively, in order that the title to it might be passed over by them to the new firm as part of their stock in trade. The facts of the case bring it clearly within the principle settled in Howe v. Lawrence, 9 Cush. 553. The joint creditors have no claim on partnership property after it has been converted into separate estate by a bona fide transfer to individual members of the firm.

It was urged by the petitioner, that the effect of the agreement between the members of the old firm was to fasten a trust for the payment of the debts of that firm on that portion of the. partnership property which was charged to Tobey and Minot, which trust the' assignees might enforce for the benefit of the creditors of the firm, according to the doctrine stated in Harmon v. Clark, 13 Gray, 114. But we can see no evidence of any such trust. On the contrary, such an interpretation of the contract would defeat the main object which the parties had in view. The merchandise was to belong to the new firm absolutely, to be disposed of in the ordinary course of trade. No trust, therefore, was affixed to the specific property, as was the case in Harmon v. Clark. Nor was any lien or claim to exist on the interest of Tobey and Minot in the new firm, in behalf of the old copartnership or its creditors. To the validity of any such lien or claim, the assent of Foster and Badger, the other copartners, was essential, because it would materially affect their rights and interests as members of the new firm, if the members of the old copartnership or its creditors could enforce such a trust on a portion of such property as assets which belonged to tho firm. No such assent is shown, and none can be implied fron the terms of the agreement or the facts in proof. The stipulation that Tobey and Minot should furnish money from their new firm or otherwise to the amount of the goods taken by them, for the payment of the debts of the old copartnership, was only a personal covenant or agreement, for the performance of which they alone were responsible, and which in no way bound the new firm or fastened any trust on the interest of any of its members in its property or assets.

Petition dismissed.