Lapenta v. Lettieri , 72 Conn. 377 ( 1899 )

As between Lettieri and Aspromonte, all rights of Lettieri by reason of his contract with the plaintiff became vested in a partnership consisting of Lettieri and Aspromonte, before any work under the contract was done; and it was this partnership by which the erection of the buildings was not only commenced, but completed, unless it was dissolved by the action of Lettieri in rescinding the articles of partnership without Aspromonte's consent.

A copartnership is in its essence a contract of agency. Each partner is the general agent of the firm, and the firm is the agent of each partner, with power to bind him to a personal liability in favor of partnership creditors. Whoever acts as another's agent must base his authority on the other's assent. Such assent, if given, may be retracted at any time, as regards future transactions. This doctrine in the law of agency rests on reasons which apply fully to the partnership relation. It is one especially of personal confidence, and when this is wanting can seldom be long maintained with advantage to any party in interest. The rule of Roman law, Tamdiusocietas durat, quam diu consensus partium integer perseveret (Code of Justinian, IV, tit. 37, pro socio, 5), has accordingly been generally followed in American courts, and seems the only one consistent with the general principles of contract. See Skinner v. Dayton, 19 Johns. 513, 538; Karrick v. Hannaman,168 U.S. 328, 334; 3 Kent's Comm. *55; Solomon v.Kirkwood, 55 Mich. 256.

The rescission, therefore, of the agreement between Lettieri and Aspromonte by Lettieri after due notice to Aspromonte, terminated their partnership relation, before the building was finished.

This agreement was not in the form of an assignment, and had it been, as no notice of its terms, so far as appears, was given to the plaintiff, it would have been insufficient to make him accountable to the copartnership. His signature as an attesting witness did not, as matter of law, imply any knowledge on his part of the contents of the paper. Nor did his acceptance of receipts for moneys paid, signed by both Lettieri and Aspromonte, necessarily show that he knew them to be copartners and dealt with them as such. So far as he was concerned, therefore, his legal obligations were to Lettieri alone.

The dissolution of the partnership left Lettieri and Aspromonte, each, charged with the duty of administering the partnership assets so far as he might have them in his possession or under his control, in such a manner as to protect the partnership creditors. Rice v. McMartin, 39 Conn. 573, 575; New Haven County Bank v. Mitchell, 15 id. 206, 222. It was for the advantage of each and both that the building contract should be fulfilled, and each continued to contribute to that end. When the buildings were completed, Lettieri properly filed the certificate of lien in his own name, for he was the only party to whom the plaintiff was legally liable; but Aspromonte had an equitable interest in the estate in the land which was thus created, as well as in the indebtedness which it secured.

To hold the plaintiff to the payment of the contract price, it was necessary for Lettieri and Aspromonte to raise $600 to meet claims for work and materials. Aspromonte having declined or being unable to contribute anything for this purpose, Lettieri dissolved the partnership, and afterwards borrowed the money from Conti, on assignments of his rights under the contract with the plaintiff and of his builder's lien. This loan was for the benefit both of Lettieri and Aspromonte, and Lettieri was therefore not only legally but equitably entitled to secure it as he did. Conti was chargeable with notice of the certificate of lien filed by Aspromonte in favor of the partnership on January 28th, 1898, but as that date was more than sixty days after the commencement of the work, and the partnership was neither the original contractor with the plaintiff nor a subcontractor acquiring rights with the plaintiff's written assent, this certificate was of no validity. General Statutes, § 3020.

After the assignment to Conti to secure the $600 loan, he assumed the payment of a bill of $150 for materials used in the construction of the buildings, and supplied Lettieri with some goods for his personal use, whereupon Lettieri made a further assignment to him of all his remaining rights under the contract. So far as these goods are concerned, Conti cannot claim the benefit either of the contract or of the builder's lien, as against Aspromonte. His transaction with Lettieri, in this particular, amounted at most, when examined in a court of equity, to buying property held in co-tenancy from one of the co-tenants. He could buy no greater title than Lettieri had.

As respects the plaintiff, his legal indebtedness to Lettieri had become an indebtedness to Conti, and his buildings were incumbered in favor of the latter, only. He was under no obligation to withhold payment until the equities between Lettieri and Aspromonte or between Aspromonte and Conti had been adjusted. The circumstances were such, however, as to justify him in instituting this proceeding; and having asked in his complaint that Lettieri, Aspromonte and Conti be ordered to interplead together concerning their claims to the fund, he opened the door to a full inquiry into any and all such demands as either might present. Union Trust Co. v. Stamford Trust Co., ante, pp. 86, 93.

The claims of the parties were sufficient to raise all the material issues which it was necessary to determine in order to do full justice between them, without resort to any cross-complaint, or further pleadings.

Conti was entitled, as against Lettieri, to the whole of the fund in controversy, but as against Aspromonte to so much only as would repay the $600 borrowed by Lettieri and indemnify him for the assumption of the $150 bill.

Aspromonte had a right to ask the court to state the partnership account between himself and Lettieri, so far as might be necessary to determine his equitable share in whatever balance might remain after satisfying Conti's demand to the extent above stated, and then to order the payment to him of the amount of that share, if any, by the plaintiff.

The fourth and fifth of the final rulings of the trial court were therefore incorrect. They were founded on too technical a view of the forms of procedure upon proceedings of this nature.

There is error, the judgment is set aside and the cause remanded for further hearing as to the state of the partnership account, and a judgment ascertaining and enforcing the respective rights of Conti and Aspromonte in the fund, in conformity with this opinion.

In this opinion the other judges concurred.