Blank & Brother Candy Co. v. Walker , 46 Mo. App. 482 ( 1891 )

Gill, J.

This is a contest over the title of a grocery stock at Moberly. It arises out of the following state of facts : Defendants Walker & Brownfield had two grocery stores, one at Moberly, and one at Leesburg, seventeen miles from Moberly. Walker resided, and-managed the business, at Leesburg, while Brownfield lived, and had charge of the store, at Moberly. Before the occurrences here related, however, the store at Leesburg was closed out by the firm. On January 3, 1890, Brownfield, claiming to act for and in behalf of his firm executed and acknowledged, in the firm-name, a deed of assignment to interpleader Yasse; the instrument purporting to convey the entire personal assets of the partnership for the benefit of the firm creditors. While Walker did not join in the execution of the deed of assignment, the evidence shows beyond dispute that he authorized Brownfield to make the assignment for the firm. The authority is shown to have been given by Walker to Brownfield in this manner: Only a few days before the execution of the assignment Brownfield went to Walker at Leesburg, and after consulting over the financial condition of the Moberly store, Walker advised an assignment, and instructed Brownfield to return to Moberly and make an assignment for the firm for the benefit of all the creditors alike. Thereupon ■Brownfield, in the name of the firm, made the assignment in question.

A few days thereafter (to-wit, January 11, 1890) these plaintiffs sued the firm of Walker & Brownfield in attachment and levied upon the goods assigned, and which were then in the assignee Yasse’s possession. In due time Yasse, the assignee, interpleaded for the goods. The issues were tided before the court, without a jury, who found for the interpleader, and from a judgment thereon plaintiffs have appealed.

I. The single question is here presented. Is the deed of assignment made by Brownfield, signed and acknowledged by him for the firm of Walker & Brownfield, a valid conveyance, such as places the ownership of this personal property in Yasse, the interpleader. The circuit court trying this cause held in the affirmative. We are of the same opinion, and shall affirm the judgment.

Ón the question of whether or not a deed of assignment conveying the entire personal assets of a copart-' nership for the benefit- of all the partnership creditors is valid, unless signed and acknowledged by all the partners, there has been much contrariety of opinion. Some courts have decided the one way, others the contrary. Some have said that the execution of such a conveyance was within the scope of agency and power resting with the individual member or members of the firm. While other courts have denied any such authority. It will serve no useful purpose in this case to review these authorities. The various rulings have been faithfully and industriously collated by 'Mr. Burrill in his work on assignments. Burrill on Assignments [5 Ed.] pp. 107-131, and numerous cases there cited. The supreme court of this state has adopted the negative of this general proposition, and holds that one partner is not empowered, by virtue of the copartnership relations, to make a general assignment of the partnership effects, so as to bind the other. Hughes v. Ellison, 5 Mo. 463; Hook v. Stone, 34 Mo. 329.

While our supreme court has denied this authority as implied by force of the partnership relation, it has not been decided by it that a deed of assignment made by one partner for the firm with the express assent and direction of the other members would be invalid. This exact condition of things has not, that I am aware of, ever been presented for decision to' the appellate courts of this state. But wherever presented and decided in other courts the holding is quite uniform that one partner may, with the consent of his associate, make a valid deed of assignment. Burrill on Assignments, pp. 107, 126 ; Wells v. March, 30 N. Y. 344; Baldwin v. Tyne, 19 Abb. Pr. 32; Shattuck v. Chandler, 40 Kan. 516 ; Ely v. Hair, 16 B. Monroe (Ky.) 230. The case at bar comes clearly within the rule announced in these authorities. Brownfield was authorized and directed by his copartner Walker to make this deed of assignment for the firm. Walker cannot dispute its validity, nor can these creditors who stand in his shoes. Ely Hair, supra, p. 238. Judgment affirmed.

All concur.