Coverly v. Braynard , 28 Vt. 738 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

In regard to the principal action, if the defendant was the real purchaser of the goods, for his own benefit, he is undoubtedly liable, notwithstanding he purchased them on the credit of another, by the consent of such person, without disclosing the fact that he was himself the real party. And it seems to us, upon a fair construction of the auditor’s report, this must be regarded as a case of that kind. The defendant seems to have been carrying on the business in the name of a brother, for his •own benefit. The judgment is therefore reversed, and judgment rendered on the report for the plaintiffs against John H. Braynard.

In regard to the liability of the trustee, it seems to us he cannot be made chargeable upon the present attachment. It was decided by this court, (McKenzie v. Ransom, 22 Vt. 824,) that it was the writ which created the sequestration of property in the hands of the trustee, by delivering the trustee a copy. Of course, then, the attachment or sequestration of property would not go beyond the property described in the writ, as applied to the general' law upon the subject of the liability of trustees. If different trustees are summoned generally, they are made liable for all their debts to the principal debtor, both joint and several; but not for partnership effects held by other partners, unless such effects are specifically described. Pettes v. Spalding, 21 Vt. 66.

The writ, in the present case, expressly requires the officer to summon the trustees, naming them, as partners in business under the firm of C. Carpenter & Co., to make disclosure of the goods, effects, &c., in their hands. This, upon any fair construction, can signify nothing more or less than the goods, effects and credits in their hands as such partners. Any other construction would be forced and unnatural, and we should not be prepared to adopt it, as it would certainly be liable to mislead in other cases, however it may have operated in this case. And however much the trustee Hinman may have labored to evade the attachment, he¡ certainly cannot be made liable for effects in his hands not attached. ,And by the express terms of the writ, the attachment is limited to partnership effects. It is obvious the writ was not drawn with the remotest reference to any effects in the hands of either partner in his individual capacity. And although there may be some things in the case, which look like a shift of partnership effects, yet we do not revise in this court the finding of the facts in trustee cases. And the commissioner says, in express terms, that he only finds Hinman liable upon condition that summoning the trustees, in their partnership capacity, is sufficient to hold them individually, and Hinman swears expressly that he owed the $500 individually. We think, therefore, unless we overrule the cases above cited, the judgment in favor of the trustees must be affirmed.