Henderson v. Cashman , 85 Me. 437 ( 1893 )

Walton, J.

This is an action by two co-partners against a woman for whom they contracted to build a house.

It appears that before the commencement of the action she had been summoned as the trustee of one of them, and consented to be charged for half the amount then due to both of them. This was’ done without notice to the other co-partner; and the question is whether such a judgment is binding upon him. Clearly not.

It is settled law in this State that, when one of the members < of a firm is sued for his individual debt, and a debtor of the firm is trusteed, notice of the fact must be given to the other members of the firm, or a judgment charging the trustee will not be binding upon them. Whether or not the trustee shall be charged, and, if so, for how much, are questions in which they are interested, and, in the decision of which, they have a right to be heard; and if they do not voluntarily appear and become part-ties to the suit, notice of its pendency must be given to them, or a judgment charging the trustee will not be binding upon them. All the assets of the firm, including its credits, may be needed for the payment of the firm’s debts ; and, if so, no portion of them can be applied to the payment of the debt of one of its members. It is only his individual share, after all the affairs of the firm have been fully settled, that can be taken on a trustee process and applied to the payment of his individual debt. He, indeed, may be very willing to have the assets of the firm thus applied; but his copartners may be very unwilling; and they must have an opportunity to be heard before the question can be conclusively settled against them.

The ruling excepted to was clearly wrong. Parker v. Wright, 66 Maine, 392 ; Burnell v. Weld, 59 Maine, 429 ; Look v. Brackett, 74 Maine, 347 ; Hawes v. Waltham, 18 Pick. 451; R. S., c. 86, § 32.

Exceptions sustained.

Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.