Gay v. Ray , 195 Mass. 8 ( 1907 )

Sheldon, J.

We are of opinion that, the temporary injunction issued in this case on February 6, 1904, created an equitable lien upon the interest of the defendant Ray in the partnership of the defendants which is valid against the trustee appointed in bankruptcy proceedings begun on January 11, 1906. We regard this question as settled by the decisions in Snyder v. Smith, 185 Mass. 58, Metcalf v. Barker, 187 U. S. 165, and Pickens v. Roy, 187 U. S. 177. And see 5 Cyc. 865, and the cases there cited. It was assumed that this was the correct rule in Mauran v. Crown Carpet Lining Co. 23 R. I. 324; 6 Am. Bankr. Rep. 734, relied on by the trustee in bankruptcy, though there the equitable lien did not avail because it antedated the bankruptcy proceedings by less than four months.

But the trustee in bankruptcy contends that the rule of Snyder v. Smith, ubi supra, ought not to govern this case, because here no tangible assets have been attached, but simply an interest depending upon a contingency. J3e contends that there was no tangible thing to which the lien could attach itself, and draws the inference that for this reason there could be no lien in existence. But this conclusion does not follow. There is no greater difficulty in attaching an equitable lien to an interest which, though contingent, is hereafter to be worked out and made tangible by proceedings in equity, than there is in attaching a common law lien to a tangible and visible entity. So the ordinary attorney’s lien upon a judgment obtained by him may be extended by statute to cover a mere cause of action upon its being put in suit. Smith v. Chicago, Bock Island & Pacific Railroad, 56 Iowa, 720. Wood v. Anders, 5 Bush, 601. Kansas Pacific Railway v. Thacher, 17 Kans. 92. Our statute expressly provides that in such a suit as this, “ the interest of the defendant in partnership property may be reached and applied in payment of the plaintiff’s debt.” R. L. c. 159, § 3, cl. 7. St. 1902, c. 544, § 23. Bull effect could not be given to this statute and the legislative intent would be frustrated if it should be held that the rule of Snyder v. Smith did not cover such a proceeding.

The interest of Ray which was held by this process was manifestly his share in the partnership, that is, the balance which would become due to him after the payment of all the firm debts and the adjustment of the accounts of the partners. Moore v. Rawson, 185 Mass. 264, 272. Pratt v. McGruinness, 173 Mass. 170, 172. Sanborn v. Royce, 132 Mass. 594. Tobey v. McFarlin, 115 Mass. 98. Foot v. Hunkins, 14 Allen, 15, 17. Peck v. Fisher, 7 Cush. 386. Allen v. Wells, 22 Pick. 450, 455, 456. Hawes v. Waltham, 18 Pick. 451. The statute which gives this remedy expressly provides that unless the bill is brought to recover a judgment debt, “ the business of the partnership shall not be enjoined or otherwise interrupted further than to restrain the withdrawal of any portion of the debtor’s share or interest therein until the plaintiff’s debt is established.” R. L. c. 159, § 3, cl. 7. St. 1902, c. 544, § 23. In this case, accordingly, the injunction issued did not forbid the further prosecution of the business; and the defendants were at liberty, until the receiver was appointed on December 22, 1905, to carry on their business as before, and the-right to dispose of their stock and buy new merchandise, to pay off old debts and to incur new ones continued; and the interest of both partners remained subject to the ordinary hazards of business. Plainly the rights of new partnership creditors whose claims accrued in the meantime must be superior to the rights of either partner; and it is equally plain that the plaintiff can hold the interest of Ray only as that interest wah found to be, when the court finally interposed, took hold of the partnership property through its receiver, and proceeded to wind up the partnership affairs, and so to reach an actual determination of the amount of Ray’s interest, — the amount to which he would be entitled after payment of all the firm debts and a settlement of all the partnership accounts. If there is found to be any such interest in existence, the plaintiff is entitled to hold it; if not, the plaintiff’s lien is lost by the destruction of the fund upon which it was a charge. The value of Ray’s interest must therefore be settled as of the time when it can be actually determined, that is, at the time when the result of the liquidation of all partnership accounts shall have been reached.

It may be that the present state of affairs is such as to make it now evident to the parties whether the final liquidation of the partnership will show that the firm property is insufficient to pay the firm debts or whether there will be a- balance left belonging to Ray which the plaintiff can hold. If the former is the case, then, subject , to the payment of his fees and charges, the receiver appointed by the justice of this court should turn over the property and assets in his hands to the trustee in bankruptcy. Mauran v. Crown Carpet Lining Co. 23 R. I. 324. Kimball v. Gafford, 78 Iowa, 65. Wilson v. Parr, 115 Ga. 629. Matter of Lengert Wagon Co. 6 Am. Bankr. Rep. 535. In re Lesser, 100 Fed. Rep. 433. Wheeler v. Walton & Whann Co. 64 Fed. Rep. 664. Winchester v. Davis Pyrites Co. 67 Fed. Rep. 45. If the latter is the fact, the application of the trustee in bankruptcy should be denied, and the receiver should proceed to wind up the business, so far at any rate as to determine the value of the defendant Ray’s interest; and the amount of that interest should be paid to the plaintiff so far as necessary to satisfy his demand, and the balance of Ray’s interest and the whole interest of the other partner should be turned over to the trustee in bankruptcy. If however the parties are unable to agree which of these alternatives will turn out to be the true one, then, in order to preserve the rights of all parties, the trustee in bankruptcy must be allowed to become a party to the case as in Snyder v. Smith, 185 Mass. 58, and the receiver must wind up the partnership business, and the amount of the partnership debts must be ascertained; and then final action may be had in the manner already stated.

For the determination of the issues now involved it does not seem to be material to ascertain whether either of the defendants has been guilty of any breach of the injunction issued in the action. If such is the case, the court, upon the matter being brought to its attention in the proper way, will be able to vindicate its authority. Nor have we before us the means of determining the effect of the opening of the George Oliver store by the defendants in another State, if this is the fact. They were not enjoined from carrying on their business; they were not forbidden to open other stores in other places, even beyond the jurisdiction of our State courts. Whether the business done in Pawtucket, if there was such business, should be brought into the firm accounts in the case to affect the value of the defendant Ray’s share must depend upon whether it shall be found that this business was simply an extension of the original firm business, or whether, though carried on by the same partners, it was in fact a new and independent venture, wholly unconnected with the original partnership.

In any event, the receiver’s proper fees for his services, and his disbursements, should be ascertained; and he should not be ordered to turn over the property in his hands to the trustee in bankruptcy until these have been paid, either out of the fund or otherwise. Wilson v. Parr, 115 Ga. 629. Mauran v. Crown Carpet Inning Co. 6 Am. Bankr. Rep. 784.

It follows that the exceptions of the trustee in bankruptcy to the master’s report should be overruled as immaterial.

The plaintiff’s first, second and third exceptions to the report should be overruled, and his fourth, fifth and sixth exceptions should be sustained. If the parties cannot agree upon a decree in accordance with this opinion, the case should be sent back to the master to find and report whether the defendants did open and carry on the business named in the. tenth and eleventh paragraphs of the plaintiff’s answer to the trustee’s application, and if so, whether such business was a part or extension of the business formerly carried on by the defendants in Boston, or was a new and independent venture of theirs, unconnected with their former partnership; and the receiver should be directed to wind up.the firm business and make report to the court of the amount realized therefrom, and to ascertain and report the amount of all outstanding debts of the partnership, including or not including any indebtedness of the Pawtucket business according as it shall appear that such business was a part or extension of the Boston business or that it was independent thereof; and final order to be entered as already stated.

So ordered.