Williams v. Frost , 27 Minn. 255 ( 1880 )

Berry, J.

The question in this case is whether a certain assignment for the benefit of creditors, made in January, 1879, is valid against an attaching creditor. The important facts are these: George H. Fairbanks and Ñeco J. Yandervelde were partners in trade, doing business at Anoka, ins this state, under the name of Fairbanks & Vandervelde. The» firm was in debt and insolvent. Between January 1 and 5, 1S79, Yandervelde went to Holland, having been called thereby the illness of his mother. He remained until after her death, returning to this country in April following. Before he w'ent to Holland he knew, as he expresses it, that “the condition of our firm financially was pretty ragged; that there were bills to be paid soon, and no funds to pay them with,”' some of the creditors having already pressed for payment.. “I left,” he says, “Fairbanks in charge of the business. I left in a hurry, and told him to do the best way he knew how, and whatever he should do I would be satisfied with. I left everything about the business and management of same to' Fairbanks. * * * I told him to do what was best. I left it for him to do what in his judgment was best, in view of the financial condition of the firm.” The testimony of Fairbanks is to the éffect that when Vandervelde left there were large bills coming due from the firm — some already due when he left — no cash with which to pay them — business light; that on January 2ith, when the assignment was made, the firm was in bad shape, and creditors were pressing for the payment of their bills. Fairbanks also testified that, when Vandervelde left, he told him to do the best he could and he would be satisfied. This testimony does not appear to have been contradicted in any way. We have no doubt that it shows that Vandervelde expressly authorized Fairbanks to do anything that he could lawfully do in reference to' the business and assets and indebtedness of the firm. One thing which he could lawfully do was to make an assignment of the assets of the firm for the benefit of creditors, with the assent of his copartner. Burrill on Assignments, (3d Ed.) 103, 330; Stein v. La Dow, 13 Minn. 412. In this case full authority to make such assignment, and full consent to the same, were included in the general authority to Fairbanks to do anything which he could do, as before stated. We have no doubt, then, that Fairbanks was authorized to make an assignment of the firm property.

' The next inquiry is, was the assignment in proper form to bind the firm ? As respects this inquiry, the important parts of the assignment are these, viz.:

“This agreement, made this 27th day of January, A. D. 1879, by and between George H. Fairbanks, as one of the copartnership firm of Fairbanks & Vandervelde, composed of the said George H. Fairbanks and Ñeco J. Vandervelde, and doing business under said firm name of Fairbanks & Vandervelde, as merchants, at Anoka; * * * and whereas the said GeorgeH.Fairbanks andNeco J. Vandervelde * * * are insolvent; * * * and whereas the said * * * Vandervelde is now * * * absent from the United States: * * * Now, therefore, this deed witnesseth that the said George H. Fairbanks, as one of said copartners, in consideration of the premises, and of the sum of one dollar to him in hand paid, * * * does hereby grant, bargain, sell and convey, assign, transfer, set over unto said party of the second part, all the property, real, personal and mixed, of the said copartnership. * * * In witness whereof the parties of the first and second part have hereunto set their hands and affixed their seals, the day and year first above written.

“George H. Fairbanks. [Seal.]

“John J. Penner.” [Seal.]

Penner was the original assignee and party of the second part. In our opinion, as respects the manner of its execution, this assignment is in substance and effect the same as if, instead of signing it by his own name alone, Fairbanks had signed in this way: “Fairbanks & Vandervelde, by George H. Fairbanks.” His intention to act for the firm in making the assignment, and the fact that he did so act, unmistakably appear on the face of the assignment itself, and emphatically so from the use of the expressions, “George H. Fairbanks, as one of the copartnership firm of Fairbanks & Vandervelde,” and “as one of said copartners,” The seal, if one be necessary, is good as the seal of the firm, in accordance with a familiar rule. The assignment is, therefore, that of the firm.

It is urged, however, that it fails to comply with that provision of the act of March 4, 1876, (Gen. St. 1878, c. 41, § 23,) which requires assignments by debtors for the benefit of creditors to “be in writing, subscribed by such debtor or debtors, and duly acknowledged before an officer,” etc. We think the subscription and acknowledgment of this assignment sufficient. The subscription is that of the firm, by one of its members. It is in effect the usual way in which a firm subscribes a written instrument. The acknowledgment is properly that of the subscribing parties, for an acknowledgment must be a personal thing.

The remaining point as to the admissibility in evidence of the assignment, under the allegations of the complaint, is disposed of by what we have already said as to the point that the assignment is that of the firm.

Order affirmed.