Bennett v. Buchan , 53 Barb. 578 ( 1868 )

Foster, J.^*

—The assignment of the judgment having been made after the dissolution of the copartnership of James Buchan & Co., by Mr. Buchan alone, and without the special authority or assent of Rich, it is contended that in any event, only the title of Buchan to the amount of one-half thereof passed to the plaintiff; and that, therefore no recovery can be had for more than one-half of it, less the one-half of what the plaintiff has already realized thereon.

The authorities cited to support the proposition fail to do so (Sanford v. Mickle, 4 Johns., 22, &c., and Geortner v. Trustees, 2 Barb., 625) and only enunciate the principle that after the dissolution of the copartnership, one of the partners cannot dispose of the partnership dioses in action, without the authority or assent of the other, as to make him liable upon any covenants or obligations which he assumes on such transfer.

In Sanford h. Mickles the transfer by one of the partners was of a negotiable note, which was payable to order, and was indorsed with the firm name by the partner who transferred it, and all the court held, was, that he could not create by such indorsement any liability against his late copartner.

It is true that the court, Yates, J., said “ it is impossible to separate the right to indorse a bill by one, passing the title, from the legal responsibility on all those having an interest in it,” and that one conld not transfer the note ; but I think there is no doubt that he could by an indorsement of the note in the firm name "without recourse, transfer the title thereto to the full extent that he could have done in respect of any other of the partnership property. And although the language of the court is more general and broader than the case called for, the decision was only that the other copartners were not liable as indorsers of the note. And in Greortner v. Trustees, while one of the head notes states the rule to be that “after the dissolution of a partnership, all the partners must unite in a transfer of a partnership security, in order to vest the title in the transferee,” it will be seen by an examination of the case that the court only decided that one partner cannot so transfer it, for his own private purposes other than the settlement of and for the benefit of the copartnership.

One copartner, after the dissolution of the firm, may release a debt, and it will be binding on all the late firm (Pierson v. Hooker, 3 Johns., 68). He may assign a bond belonging to the firm after the partnership is dissolved (Colyer on Partn., § 546). He may lawfully assign a demand due to the partnership, after its dissolution (Milliken v. Loring, 37 Me., 408), and if there be no agreement to the contrary, such partner is presumed to have authority to dispose of the partnership property, to collect, adjust and pay debts, and give proper acquittances ; but to have no power to increase or change the prior obligations of the partners (Van Kuren v. Parmelee, 2 N. Y. [2 Comst.], 525, 526).

It must be conceded, that if Buchan is liable at all, on the covenant contained in the assignment, he is at least liable to the amount of the one tenth of the judgment which was paid thereon when the release of Gilíett was obtained; for he covenanted expressly that the whole amount of the judgment remained unpaid, and being liable to that extent, at least, he cannot claim that the amount collected upon the judgment "by the plaintiff should apply for his benefit and in discharge of his obligation for that amount. He transferred the whole judgment,'and having covenanted that the whole was due, the plaintiff has the right to apply the amount she collected on the residue of the judgment, and hold him responsible upon the broken covenant to the full extent of the damage occasioned by the breach.

A more serious question is whether the appellant was liable for the whole amount found by the referee.

It must be conceded upon the findings of the referee, that there was no fraud on the part of Buchan;—that he was not aware, at the time when he executed the assignment, of the release of Grillett from the debt, and that he acted upon the transcript of the docket, which was procured and sent to him by the agent of the plaintiff; and if he is liable for the residue of the judgment, it must be because, independent of the covenant or guarantee, the law casts such implied obligation upon him ; or because of the terms of the covenant which he executed.

If the terms of the assignment had been general, stating the amount thereof, and containing no covenants, I think the law would imply a warranty, that the whole amount so expressed was due, and that it was due from all the parties against whom it was rendered, if their names were included in the assignment (Furniss v. Ferguson, 34 N. Y., 485). But the counsel for the plaintiff does not claim on the argument before us, that that rule applies to this case, and I think it does not, because of the express covenants contained in the assignment.

The right, therefore, must depend upon the language of the covenant itself. The parties have made their agreement in writing, and it contains the whole agreement. It cannot be added to by implication,, but must be construed by its terms.

The language of the covenant is, “that there is now due on the said judgment the sum of ten hundred and thirty-eight dollars and forty-six cents, and interest from 2nd, 1861, and that they will not collect or receive the same, nor any part thereof, nor release or discharge the said judgment.” The counsel for the plaintiff says that this language should he construed the same as if it read, and that they had not collected or received, &c., and “had not released or discharged the same, or any of the defendants therefrom.” This proposition is correct so far as it requires the covenant to be understood as if it read, that they had not collected or received any part of it, because that is the clear construction from the language of it, which states that the whole amount is now due. For it could not be all due if any portion of it had been paid by one ór more of the judgment debtors. So, too, the counsel is correct in claiming, that it is the same as if it read, that the assignors had not released or discharged any portion of the amount of the judgment, for such is the legal reading of the instrument, as it is ; for if any portion of the amount was discharged the whole amount could not be due. But the real question is, whether the covenant can be construed as such to mean that none of the debtors had been released or discharged from it.

It is not necessary to the validity of a release or discharge of one of the copartners of a dissolved firm from a debt or liability of the partnership, that he should have made actual payment of any part thereof to the creditor. It is enough, that for any reason the creditor discharges or releases him in the terms required by the Laws of 1838, ch, 257, and Laws of 1845, ch. 348 ; and it make no difference with the rights or obligations of his associate debtors, whether he obtains the discharge with or without payment, unless such payment exceeds his proportionate part of the whole demand ; for the act of 1838 makes him responsible over to his co-debtors, notwithstanding his discharge by the creditor, to the full amount of his proportionate share, less what he has paid to the creditor, if anything, upon obtaining such discharge.

The judgment might be in force to the full amount against the other debtors, notwithstanding GHllett had been released. And, therefore, the mere fact of his release if he had paid nothing, would not have lessened the amount of the judgment. It might all be due according to the language of Buchan’s covenant. And if nothing had been paid by Gillett, his discharge would not have been a breach of the express terms of it. Slow the covenant being in writing, I think if the plaintiff would claim that it should now be read, that none of the judgment debtors were discharged, he should have had it drawn so as to read so when it was executed. The equity of the plaintiff is very weak, upon all the facts of the case, and we should not strain the construction in her favor to enable her to make a large speculation out of one who, upon the proofs of the case, acted honestly and fairly in the transaction. It is enough, I think, that he be held responsible for what, by the terms of the assignment, he assumed; and that will make the plaintiff entirely whole; and leave a large judgment in her hands to be collected of those of the defendants therein who have not been discharged.

If, however, I am wrong in my conclusions on this branch of the case, then I think the rule of damages applied by the referee is the correct one.

But I think that all the plaintiff is entitled to recover is the one-tenth of the judgment, being $103.84, and interest thereon, from September 2, 1861. And unless the plaintiff elects to reduce her damages to that amount, without costs of appeal to either party, then thfe judgment must be reversed and a new trial ordered, against Buchan, with costs to abide the event, with the order of reference vacated.

The casé also presents pretty strong ground for a new trial, as being upon a report against the weight of evidence. Certainly, upon the evidence returned to us, I should not have hesitated to believe that Bennett, while he- was the agent of the plaintiff, and negotiating the purchase of the judgment, did, in fact, have full information that Gillett had been discharged from the judgment, and when we remember that the discharge was entered on the docket against the name of Gillett, and that Bennett himself had access to the book of dockets, and actually procured the transcript upon which the assignment was predicated, it seems to me that he was guilty of gross negligence, in not looking under the letter G, as well as that of D. But I have some doubts whether it is our duty to set aside the -report on that ground, and am therefore for disposing of the case upon the grounds previously stated.

Judgment accordingly.

* Present, Foster, Mullin, and Morgan, JJ.