Atwood v. Meredith , 37 Miss. 635 ( 1859 )

Harris, J.,

delivered the opinion of the court.

The plaintiff in error obtained a judgment in the Circuit Court of Yazoo county against V. T. Meredith, on which judgment execution was issued and served on a “ lot of produce and groceries in the house of Ranney, Grubbs & Co., as the property of the defendant Meredith.”

Adeline Meredith, the wife of defendant in execution, interposed her claim under the statute, and issue was joined as to whether the property levied on was subject to the execution.

A jury was empanelled to try said issue, who found a verdict for the claimant, and the case comes to this court on bill of exception filed to the ruling of the court below.

The 1st assignment of error is, that the court erred in refusing to permit witness Mangum to testify that Y. T. Meredith was generally understood and recognized by the community as a member of the firm of Ranney, Grubbs & Co.

As a general rule, evidence of- general reputation or common report of the existence of a partnership, is not admissible, except in corroboration of previous testimony; unless it be to prove the fact that the partnership, otherwise shown to exist, was known to the plaintiff. 2 Greenleaf’s Ev. 540, 541, 7th edit. § 483, and authorities cited.

In this case, however, it is not material to consider this assignment further, for the reason that the partnership between Ranney, Grubbs & V. T. Meredith is directly established by other evidence in the record, which could leave no doubt upon this question.

The 2d ground of error relied on is, that the court erred in refusing to permit the witness Hyatt to testify as to the cause of action on which the judgment was founded.

It was proposed to show that the note, which was the foundation of the judgment, was given for a gin-stand for the plantation of claimant. This testimony was properly rejected, as it was wholly irrelevant to the issue joined.

The 3d assignment of error is, that the court permitted the witness Grubbs to state whom he regarded as his partner, and to whom he looked for protection.

We think this assignment of error well taken. The matter to be, established was whether V Y. T. Meredith was a partner in the firm of Ranney, Grubbs & Co. The witness was a member of that firm, and therefore must be supposed to have known the existence or nonexistence of such a partnership as a positive fact, or to have been cognizant of such facts as would enable the court to determine as a question of law, whether they constituted the defendant in execution a partner in said firm. If the question was designed to elicit the knowledge of the witness as to the direct, positive fact, it was evasive ; or if intended to elicit the opinion of the witness, as to whether the facts in his knowledge, in law constituted the said defendant in execution a partner, it was still more objectionable.

The 4th assignment of error is, that the court refused to give the third instruction asked by plaintiff in error. “ If the jury believe, from the evidence, that Meredith was responsible for the debts of the firm by reason of his announcement to the world of his being a partner, then they will find for plaintiff.”

This instruction was properly refused. Whatever V. T. Meredith may have done or said in relation to his connection with said firm, or even as to his ownership of said property, could not affect his wife’s rights, if the evidence otherwise satisfied the jury that the property in dispute was rightfully hers. It was, therefore, error to instruct the jury in effect that if he was a partner in said firm, that they must find for plaintiff in execution. He may have made himself so responsible by his acts, declarations, or contract, and yet it would not follow that his wife’s property, no matter where found, would be liable to his debts.

The 5th assignment of error involves the corrections of the first, second, and third instructions asked for the claimant and given by the court.

The first instruction was, “ Unless the jury believe, from the evidence, that V. T. Meredith was a partner of Ranney, Grubbs & Co., the law is for claimant.”

It will be borne in mind that the only object for which it was competent to show that V. T. Meredith was a member of the firm of Ranney, Grubbs & Co., was to make out a prima facie case against him by tracing the goods to his possession when levied on; and thus to cast the onus of proof upon the claimant. Unless the plaintiff in execution offered some evidence that the property levied on was the property of said defendant, V. T. Meredith, and subject to said execution, the claimant under the issue was entitled to a verdict. The only evidence of property in the defendant in execution to be found in this record, is that which tends to show that V. T. Meredith was a partner in said firm, and therefore in possession of the goods when levied on. If, therefore, the evidence failed to satisfy the jury that he was such partner, the plaintiff in execution failed in his proof of property in V. T. Meredith; and they were rightly instructed in such event to return a verdict for claimant under this issue.

The second instruction referred to in this assignment of error is as follows : “ If the jury believe, from the evidence, that Adeline Meredith furnished the means for an interest in the house of Grubbs, Ranney & Co., and it was received from her husband, as her agent, by the other members of the firm, they regarding her as the partner, such facts would constitute her a partner.”

This instruction was at least erroneous, for the reason that it does not sufficiently show that the assent of both parties to the contract of partnership is requisite to constitute them partners, where both parties are capable, in law, of making such a contract.

The last instruction given for the claimant was in these words : “ The husband is the legal agent of the wife in the disposition of personal property, or thp investment of money for her.”

This instruction we think was too broad. It is not true as a matter of law that the husband is the agent of the wife in the disposition of her personal property. He may become so with her consent. And for special purposes enumerated in the act in relation to the separate property of married women, the law constitutes him her agent, so as to bind her estate, but the proposition as stated is not universally true.

It does not follow, however, for any or all of these errors that the judgment below should be reversed and a new' trial awarded.

Where it appears from the whole record that the errors complained of have worked no injustice, or that the judgment below is clearly right, it should not be disturbed here.

The issue joined in this case, under the direction of the court, was whether the property levied upon “ was and is the property of tbe defendant, V. T. Meredith, and subject to seizure and sale under, execution.”

The.burden of establishing the affirmative of this issue rests on the plaintiff in execution.

To do this, the record shows that the plaintiff relied solely on the fact that V. T. Meredith was a partner in the house of Grubbs, Ranney & Co., and that the property levied on was the property of the firm, of which he was a member. The judgment was against one partner alone, and for his separate debt. The question then arises whether the property of the firm of Grubbs, Ranney & Co., is “ subject to seizure and sale” under an execution against V. T. Meredith, and for his separate debt ?

In the case of Mobley et al. v. Lonbat, 7 How. Miss. R. 318, it is said by this court that “ the effect of a suit against one partner for his separate debt is well settled at common law. Nothing can be subjected to the judgment but his interest in the partnership effects:” citing 2 Ld. Raymond, 871; Coll. on Part. 474; 2 John. 282; and this even in ease of a partnership debt, where the creditor, under our Act of 1836, elects to proceed against one partner, and obtains judgment against him alone. To hold otherwise, say the court, would subject the property of persons to a judgment who are not parties to it, and in no way bound by it. In a judgment against one partner for his separate debt, his interest in the partnership effects may be sold by execution at law, though that has been much questioned. But the sheriff can only sell the actual interest of such partner in the partnership property after the accounts are-settled, or subject to the partnership debts. Citing Nicholl v. Mumford, 4 John. Ch. Rep. 525; Moody v. Payne, 2 John. Ch. R. 548.

The rule may now be considered -well settled, that the sheriff, in levying an execution on partnership property for the debt of one partner, levies on the interest of the debtor partner, and takes possession of the whole effects. On the day of sale, he offers and sells only that interest, and the purchaser takes in the same manner the debtor held it, and subject to the rights of the other partners. Cowper R. 451; Waddell v. Cook, 2 Hill, 47; Phillips v. Cook, 24 Wend. 389; 6 Munf. R. 111; 3 Ala. 319; Coll. on Part. 707; Story on Part. 373-4; 2 Hill N. Y. R. 47; 4 Hill, 161; 3 Denio, 125; 12 Ala. 681.

The case of Mobley v. Lonlat, already cited, would seem to be decisive of the ease before us, when its facts are considered. Lon-bat sued out an attachment against Depew & Hazen. Mobley & Co. were summoned as garnishees. Two of this firm filed their answers as garnishees, admitting the indebtedness of their firm to the firm of Depew, Hazen & Co.; and upon this state of facts, judgment was rendered in the court below, against the garnishees, the case brought to this court for revision; and reversed, upon the ground “ that it would not be proper to render a judgment against the firm of Mobley & Co., in a case against Depew & Hazen alone, unless the precise amount due by them to those two members of the firm of Depew, Hazen & Co., was ascertained. To do so would be to subject the interest of the third partner, without a judgment against him.”

Upon the principles here announced, even if judgment had been rendered in favor of the plaintiff in execution, it could not have been sustained in this court, because it would have subjected the property and interest of Grubbs & Ranney to the individual debt of Meredith, without any trial or judgment against them, and without any proof of their respective rights therein. “ This,” in the language of the court, “ is utterly at war with the certainty required in judicial proceedings.”

In the late case of Sanders v. Young et al., 31 Miss. R. 111, we understand these same general doctrines to be recognized. And in the later case of Bowman v. O’Reilly, 31 Miss. R. 262, it is held, “ that the interest of a copartner in the property of the concern is not his pro rata share of any particular portion of the partnership effects, but his due proportion of the balance of assets, after a general account, embracing the whole partnership business, has been stated between him and his associates.” This we deem to be the true rule; and it is this interest which is the subject of levy and sale, and nothing more. The purchaser takes the place of the debtor partner in the whole effects, but owns no specific property in any particular portion of the effects of the partnership, which may be severed, sold, and delivered to a purchaser by the sheriff, to the exclusion of the rights of the other partners.

In this view, under the proof in this case, no judgment could have been properly rendered in favor of the plaintiff in execution, if a verdict had been found in his favor.

Judgment affirmed.