William J. Randall & Co. v. Johnson , 1881 R.I. LEXIS 32 ( 1881 )

William J. Randall and Lydia Randall, copartners by the style of William J. Randall Company, sue Johnson, the defendant, in trespass vi et armis for breaking and entering the plaintiffs' store and attaching certain personal property which they claim as the property of said firm. Johnson, the defendant, pleads that J.F. Comstock Company sued out a writ of attachment against said William J. Randall, and that he, Johnson, being a deputy sheriff, attached said property on the said writ as the property of said William, and said property was afterwards sold at public sale by order of one of the judges of this court according to the provisions of the statute, and that the said William was notified thereof as by law provided, and was himself the highest bidder for and purchaser of a portion of them. The plaintiffs demur.

The plaintiffs, William J. Randall Company, contend that being partnership property, it could not be attached as the property of one of the partners, and that therefore the plea, if true, alleges no valid defence.

The weight of authority seems to be most decidedly in favor of the right of a creditor of one partner to attach that partner's right in the goods, chattels, and tangible property of the firm for his private debt due from such partner. Story on Partnership, §§ 262, 311; 3 Kent Comment. *65, and note b; Collyer on Partnership, 4th Amer. ed. § 822, and note, page 738. In the note to the latter work, as also in Kent, the cases are well stated. The attaching creditor can only take the interest of the partner, i.e. subject to the settlement of the partnership affairs, and although the sheriff may and must seize the chattel, he can sell only the partner's right in it as above.

The difficulties likely to arise in such attachment are stated in many of the cases. But, on the other hand, if the law were otherwise, a debtor might prevent attachment of his property for a debt due from himself by putting it into a partnership.

In the case of Phillips v. Cook, 24 Wend. 389, the subject was considered by Judge Cowen, who delivered the opinion of the court, and the cases reviewed at great length. It was there held that the sheriff might seize the whole of the particular article and sell the interest of the debtor in it, and deliver it to the purchaser, who then became a tenant in common with the other partner and took subject to a settlement of partnership accounts and to the equitable claims of the creditors of the firm, and this, we think, is in accordance with the other decisions on the subject. See also opinion of Nelson, C.J., inBirdseye v. Ray, 4 Hill N.Y. 158, 161; and as to the disposal of the purchase money and the remedy of the other partner, seePhillips v. Cook, 24 Wend. 389, and Doner v. Stauffer,1 Pa. 198.

Although, if the officer sells the whole, it will be as to the cotenant a conversion. Ladd v. Hill, 4 Vt. 164; White v. Morton, 22 Vt. 15; Bradley v. Arnold, 16 Vt. 382;Walker v. Fitts, 24 Pick. 191; Waddle v. Cook, 2 Hill N.Y. 47; Drake on Attachment, § 248. Yet, it is no conversion as to said William J. Randall. Whether his interest or the whole is sold, he cannot complain, and if the plea be taken as true, he cannot maintain this action, and the suit in its present form must fail. Whether the other party plaintiff can maintain a suit will depend on whether she was or not a partner or had any interest in said property.

Demurrer overruled.