Libby v. Brainard , 63 Me. 65 ( 1873 )

Danforth, J.

Whether the trustee in this case is to be charged or discharged, must depend upon the validity and construction of the written agreement entered into October 17,1868, between the Portland Marble and Ereestone Company and Charles M. Brainard, the principal defendant. That company-was not incorporated, but a mere partnership, and at the date of the agreement referred to, existed by virtue of a contract between the members thereof and had not only made preparation for, but actually entered upon, the business contemplated by that agreement. The partnership was then competent to purchase such property as they might need in the prosecution of their business. The property which the plaintiff claims to have attached was of that kind, and was conveyed to them by the principal defendant as his part of the agreement referred to, before the attachment. This conveyance was absolute and unconditional. By it the property passed, and the only interest left in the vendor, aside from that which he might have as a member of the company, was not a title to the property itself, but a mere contingent interest in the proceeds, not liable to attachment in a trustee process. Whether the company subsequently failed to carry out its contemplated projects is immaterial. The conveyance of the title must depend upon the state of things existing at the time of the sale. If the partnership is subsequently dissolved for any reason whatever, its title to property is not thereby affected.

Nor does the disclosure or testimony reveal any such want or failure of consideration as to affect the title. There is no provision whatever in the writing that the title shall remain in the vendor until the accomplishment of the agreement by the vendees, nor for a reversion in case of failure to perform. The vendees can fulfil only by having an absolute title. The covenants are not mutually dependent but independent, and the consideration obtained is just what was contemplated by the agreement, viz: a payment of the notes therein enumerated, with the debt to Weston and Company, at least so far as the proceeds may go, and if there should be any balance or interest in the company to that extent. This interest, if any, may be larger in the liabilities than in the assets, but this is a contingency assumed at the time of the sale, and one which may cause loss to creditors as well as to the debtor Trustee discharged.

Appleton, C. J., Walton, Dickerson, Barrows and Yirgin, JJ., concurred.