Foot v. Hunkins , 96 Mass. 15 ( 1867 )

D. Saunders, Jr.,

(S. B. Ives, Jr., with him,) for the plaintiff. The defendant, after he had taken possession of the wood and timber and expended money and labor thereon, had an interest ¿herein of which he could not be deprived by any act of the claimant. After selling the same, he had a full title to one half of the proceeds. There is a distinction between receiving one half of the proceeds of sales and one half of the net profits. In this case, if the defendant was not a joint owner of the wood and timber, he was certainly a joint owner of the proceeds of the sale.

Foster, J.

C. C. Hunkins, the claimant, owned a wood-lot, and made a contract with N. F. Hunkins, the defendant, by which the latter agreed to cut, work, sell and market to the best advantage all the wood and timber standing upon the lot, for half the proceeds of the sales, after deducting three hundred dollars, .half the price paid for the lot. The defendant agreed to keep an account of all receipts for the wood and timber, and to pay all bills for chopping, manufacturing and converting the same into cash ; and C. C. Hunkins agreed to furnish a team to bring the wood and timber to market.

The defendant, N. F. Hunkins, sold in his own name a portion of the wood and timber cut from this lot under this agreement, to the parties summoned as trustees. The question is. whether a creditor of N.' F. Hunkins can attach by trustee process a part or the whole of the money due from such sales. In the opinion of the court it cannot be done. The agreement did not transfer the title to the wood while standing or when cut. It remained the property of the claimant, and when sold an action for the price could have been brought in his name alone, and could not have been brought by the principal defendant. That which the defendant was ti_ receive was half the proceeds after collection, not before, and after the deduction of three hundred dollars. It was payable to him by way of compensation, not from the purchaser, but from the owner, if the latter collected the price. If the defendant himself collected it, he would do so as agent of the owner, and be entitled to retain his share upon settlement. But the purchase money was not in any part a debt due to the defendant from the buyers of the wood.

Neither party contends that the claimant and defendant were under their agreement copartners in the business of selling and marketing this wood and timber. But if they were, the same result would follow. The interest of one partner in a debt due to the firm cannot be attached by trustee process in an action against him alone. Hawes v. Waltham, 18 Pick. 451.

The trustees should have been discharged.

Exceptions sustained.