Lord v. Downs , 112 Me. 396 ( 1914 )

Cornish, J.

The plaintiff, as assignee of the firm of Lord and Fenderson, seeks to recover from the defendant, certain insurance premiums alleged to have been due to the partnership. Two defenses are presented, one a question of fact and the other a matter of law.

The defendant, in the first instance, says that he is not liable because he neither placed this insurance with the firm nor authorized them to place it in his behalf. The evidence on this issue is contradictory, and the burden rests on the plaintiff, but in our opinion that burden has been fully sustained. The defendant, in 1909, purchased certain real estate on which were two existing policies of insurance that were assigned to him at that time. Both of these policies came through the agency of Lord and Fenderson, one being placed directly by them and the other indirectly through the Batchelder agency at Sanford. About the time of their expiration in July, 1911, the plaintiff called upon the defendant and asked him if he wished to have the policies renewed. The plaintiff testifies that the defendant then and there authorized their renewal, but the defendant, while admitting the conference, claims that he authorized only a blanket policy. The defendant then signed an application for renewal in one company and gave it to the plaintiff who subsequently obtained the policy. Renewal of the other policy through the Batchelder agency was also obtained, the premium being paid by Lord and Fenderson. The plaintiff claims that both policies were mailed to the defendant, but he denies receiving them. Several statements of account were subsequently sent to him, to which he paid no attention and made no answer. The firm of Lord and Fenderson was dissolved on December 31, 1912, and this suit was brought by Mr. Lord to whom this claim had been assigned by the firm. It would serve no practical end, either in the decision of this case or as a precedent in others, to discuss the evidence in detail. It is only necessary to say that the testimony, the conduct of the parties, and the surrounding circumstances impel us to the conclusion that the plaintiff’s contention is right, and the defendant’s liability is established.

The defendant’s second contention is that the plaintiff cannot maintain this action as assignee, because at the dissolution in December, 1912, this account was assigned orally to the plaintiff, that he “thereby then and there became the owner of this account against John G. Downs and that, therefore, he should bring suit under the name of Lord and Fenderson; and further that his. written assignment, dated June 1, 1913, conveyed nothing for the reason that this account had already been assigned orally.”

The uncontradicted facts relating to the dissolution and assignment are these. At the dissolution by mutual agreement between the parties Mr. Lord took the assets, became liable for the debts, and settled with Mr. Fenderson on that basis, this particular account being reckoned at its face value and Mr. Fenderson receiving his due share thereof. This constituted an equitable assignment to Mr. Lord and would authorize the bringing of the suit in the name of the assignor but not of the assignee. Serata v. Surace, 111 Maine, 508.

But it was also understood between the partners that if any suits were necessary for the collection of the bills due the partnership, such suits should be brought in the name of Mr. Lord, and this assignment made on June 1, 1913,' was executed in furtherance of that agreement. The fact that it was not signed on the exact date of the dissolution does not destroy its force. When executed it related back to the oral assignment which had been made for a valuable consideration. Fenderson had ceased to have any financial interest in the claim on December 31, 1912, and from that time forward it belonged to Lord. This written assignment was merely confirmatory of his title and enabled him to bring suit in his own name under B. S., Chap. 146, Sec. 84. Independent of such an agreement, a partnership is regarded as continuing, even after a dissolution, for the settlement of its affairs, and each partner retains the full possession of his former powers unless a different arrangement had been made. Gannett v. Cunningham, 34 Maine, 56.

The plaintiff’s legal right to maintain this action in his own name is clear.

Judgment for plaintiff for $35.52 with interest from date of the writ.