Fulton, Hensley & Co. v. Thompson , 18 Tex. 278 ( 1857 )

Wheeler, J.

Our opinion of the rulings of the Court sustaining exceptions to the answer, will dispense with the necessity of considering other questions raised by the assignment of errors.

If, as alleged in the answer, to which exceptions were sustained, the purchases were effected by the deceased partner, for his firm, on credit, upon the express understanding and agreement on his part, that he would personally superintend the sale and disposition of the goods at their place of destination ; if this contract was entered into upon this assurance, trust and confidence, and this was the ground of the credit extended to' the firm, it does not admit of question that it was the right of the vendors to insist upon its fulfilment. It cannot be doubted that it was their right to make the condition on which they would part with, or deliver the goods on sale upon credit; and having the right thus to stipulate, it was also their right to have the stipulation performed ; or else, to have the contract rescinded ; provided it was not so completely consummated and executed, as that the parties could not be placed in statu quo. Such was not the case. On the contrary, the event which rendered the performance, by the vendees, of their undertaking impossible, happened before the goods reached their destination, or came to the possession of the vendees. And upon the happening of that event, we do not doubt, it was the right of the vendors to reclaim their goods and abandon and rescind the contract.

If, upon the alleged understanding and agreement, possession of the goods had been delivered to the vendees in New York, and, instead of proceeding according to the agreement, they had undertaken to ship them to California, or Nicaragua, or some other foreign port, can it be doubted that it would have been such a breach of confidence and of their undertaking as would have entitled the vendors to treat the contract .as virtually rescinded, and resume possession of the goods? And, in the present case, although the failure of the vendees to comply with their undertaking, upon which they obtained the credit, did not arise from any wrong on their part, but by the act of God,, still the effect was equally to defeat the purpose and intention of the contracting parties ; and to effect an essential change in their circumstances; which, could it have been foreseen, would, undoubtedly, have prevented the making of the contract.

But if the right of the vendors to reclaim possession of the goods was not complete otherwise, it certainly was so, upon the request of the representative of the deceased partner. The death of the partner was a dissolution of the partnership. It completely put an end to the power and authority of the surviving partner to carry on, for the future, the partnership trade and business, or to engage in any new transactions or contracts on account of the partnership. It was his duty as surviving partner to cease altogether from carrying on the trade or business of the firm. His rights, powers and duties were thenceforward confined to such acts and dealings with the partnership effects, as were necessary to enable him to wind up and settle the affairs of the partnership. Ordinarily, he would be entitled to close up the affairs of the firm ; and to this end, to receive the debts due to the partnership, and to apply the partnership assets and effects in discharge of its debts. But if there were danger of abuse, or misapplication of the funds, even this right would be controlled by a Court of Equity. (Story on Partnership, Sec. 343, 344.) The deceased and the survivor, it seems, had been engaged in business previously as partners. But this purchase may be regarded in the light of a new adventure. Before the goods had come into the possession of the partners one of them died ; and it is very questionable whether the survivor had the right to go on with the adventure ; certainly he had no right to carry on the business of the partnership after its dissolution. Nor had he any right to the possession of the goods, as against the representative of the deceased, for any other purpose than the necessary one of closing up the business of t.he firm. But it does not appear to have been necessary that he should have the possession of them for that purpose. The interest and right of the representative of the deceased were equal to those of the survivor for every other purpose. And if the possession of the goods are not necessary for that purpose, he had no exclusive right to the possession, control and disposition of them : especially was this true, if there was reason to believe he would not employ them for the sole purpose for which he could claim to have control of them ; and there is nothing to warrant the belief that this was necessary, or that the possession of them was sought by him solely for that purpose. His claim and recovery appear to have proceeded on the supposition that ho had the right to them to trade and make profit upon the sale of them, as though there had not been a dissolution of the partnership ; or the representative of the • deceased partner was consenting to his continuing the business of the firm. This was an erroneous view of the rights of the parties.

It is objected that the answer was not suficient, in that the notes and securities, given for the payment of the price of the goods, were not attached or made exhibits to the-answer, or produced in Court. The answer, however, professed a readiness and made the offer to produce them in Court to be cancelled. This was sufficient, unless the plaintiff had asked inspection of them before the trial. If he had done this, and if, when required, the defendants had failed to-produce and give them up to be cancelled, that would have-been a good ground for overruling the answer. But nothing of the kind appears ; and it is evident the Court did not sustain the exceptions to the answer upon the ground of informality or insufficiency in the manner of pleading the matters relied on in defence, but upon the ground that they did not constitute a defence to the action ; that the vendors had not the right to retain or resume the possession of the goods, and have a rescission of the contract, though the allegations of the answer were true. In this we are of opinion the Court erred ; for which the judgment must be reversed, and the cause remanded.

Reversed and remanded.