Powell v. Brown

By the Court.

McDonald J.

delivering the opinion.

[1.] In deciding the motion to dissolve the injunction, the presiding Judge in the Court below held, that inasmuch as the complainant, who, is the surviving partner of the firm of J. B. & Wm. B. Brown, and has the assets of the said firm in his hands, charges positively that the said firm is insolvent, he would not undertake to decide the question of insolvency, although the answer denies it positively, but he would refer that question to the juiy. This decision, and this alone, is excepted to as illegal and erroneous. There is no error assigned on the refusal of the motion to dissolve the injunction. But the decision of the Court, as excepted to, must be sustained. The answer to the charge of the insolvency of the firm is that, the “ defendant, answering from his knowledge information and belief, denies that the firm of J. D. & W. B. Brown is, or was insolvent,” and goes on to deny that the solvent notes, assets and merchandize amounted only to the sum set forth in (Exhibit C.) and then proceeds to “ say distinctly that said firm was entirely solvent at the death of the said Wm. B., &c. Here is a denial of insolvenc3r made expressly upon knowledge, information and belief, and then an averment of solvency distinctly made, but must be considered as distinctty made, under the same qualifications that the denial is made, to-wit: on the knowledge, information and belief of the defendant. The defendant cannot know more positively that the firm was solvent than he does, that it was insolvent. Hence this reason assigned by the Court is one of the many good reasons apparent in the bill and answer, for refusing the motion to dissolve.

The argument of the cause before this Court, traveled out of the solitary assignment of error presented in the record, and covered all the ground of a sweeping exception to the decision of the Court, refusing to dissolve the injunction. We will not follow the counsel through all the points presented in the argument. It might be improper, as this case must be submitted to a jury, and it is not necessary to the decision of the law of the case on many points, to deal with that part of the^case which would lead to a discussion of the facts.

We will remark that the Equity of this case does not depend so much on the solvency of the firm of J. D. & W. B. Brown, as it does on the insolvency of the estate of Wm. B. Brown. The suit at law enjoined is for the recovery of three distinct items, to-wit: two thousand five hundred dollars for one-third of the stock of goods on hand, all of which belonged to the testator, at the time the partnership was formed; one thousand two hundred and fifty dollars, one half of the interest of Bevis when he sold to the Browns his interest; and two hitndred and twenty dollars for eleven months board. When the Browns purchased the interest of Bevis, they agreed to refund to him eight hundred dollars with interest, a sum which he had paid William B. Brown on the purchase of one-third of the stock of goods, and four hundred dollars for his services in the firm, while he was a partner. The two Browns gave their joint or joint and several note for one thousand two hundred and thirty-four dollars, the thirty-four dollars being for interest as I suppose. On this note the complainant has been sued since William B. Brown’s death. The executor of his estate has not’been sued. The entire 'amount of this note will be recovered from the complainant, if ’he should not pay it. As the executor claims and has sued the complainant for one thousand two hundred and fifty dollars, as his share of the unpaid purchase money of Bevis, for which he became liable on Bevis’ sale of his in terest in the partnership, the eight hundred dollars, which had been paid by Bevis, and which was to be repaid to him, became the debt of William B. Brown, and one half of the interest and one half of amount paid for services of Bevis, became also the debt of William B. Brown, and if his estate is insolvent, and the complainant should be forced to pay the whole amount, he certainly has a right, upon the allegation of the insolvency of his estate, to ask a Court of Chancery to decree to him, out of the firm assets going to the testator, enough to pay that demand, on its being paid by him. He cannot set it off at law, because he has not paid it. If he allows it to pass into the hands of the executor, it will become assets in his hands payable to creditors of higher degree, if any, and if none, to complainant and creditors of equal degree, rateably.

[2.] So in respect to other matters in complainant’s bill set forth as claims connected with, or growing out of the partnership business, most of which are denied or explained on the information and belief of the executor. Such denials do not displace the Equity of complainant’s bill. The Court will require a positive denial or proof to support the denial on information and belief, before it will dissolve the injunction.

I might refer to the alleged mistake in the inventory by which the first pinchase of the stock of goods was made, and other things, of which a sufficient denial is not made. It is true, that such allegations must be supported by complainant’s proof at the hearing; but the injunction ought to be retained until a full investigation can be had on evidence.

The denial of facts, constituting a strong Equity on the part of a complainant, by an executor who answers on information and belief only, and whose representative character, in most cases, shows that he can have no knowledge, is not sufficient to entitle him to a dissolution of an injunction granted by the chancellor on these facts positively charged. It is our judgment that there is enough in this case to have justified the Court in retaining the injunction.

Judgment affirmed.