Shepherd v. . Truitt

The bill stated that Isaac Truitt was then much indebted, and, indeed, insolvent; and that for that reason he was not held out as a partner in the firm of Joseph Welch Co., but that he was in fact a secret partner, and that the goods bought and sent in his name formed a part of the capital stock of the firm put in by Isaac Truitt. It then charged that Thomas Shepherd was a creditor of Isaac Truitt, and "directed the sheriff to levy his execution on the interest of said Isaac in said store, and that the said Isaac's interest was accordingly exposed to sale and purchased by the plaintiff" in September, 1835. The bill was filed against Isaac Truitt, James Truitt, Hall and Welch, and charged that they denied that Isaac Truitt was a partner in the firm, and consequently refused to come to any account with the plaintiff. The prayer was that the defendants might discover the terms of the contract of copartnership, and that there might be an account and the plaintiff paid what might be found due to him thereon.

The answer stated that Isaac was indebted to James Truitt, and that it was agreed between them when Isaac went to Charleston to purchase the goods for the firm that he should also make the purchase, as above mentioned, on his own credit, and that James would take those goods in discharge of his debt, and that when they came they were received by the firm and credit for the value thereof given on the books to James Truitt, and not to Isaac. All the defendants distinctly denied that Isaac Truitt was a partner or had any interest in the firm of (35) Joseph Welch Co.

There was evidence that the members of the firm were desirous that it should not be known that any of the boxes were marked with the name of "Isaac Truitt"; that the sheriff levied on one of these boxes of goods, but it was nevertheless opened and the goods put into the store with the others. Afterwards, the sheriff, without disturbing the possession of any of the goods, put up to sale at the store the interest of Isaac Truitt in the store, and the plaintiff purchased it, at $400. The plaintiff examined several witnesses, and amongst them the clerks in the store, as to the interest of Isaac Truitt therein, but neither of them gave testimony that he was a partner or in any manner contradicted the answers on that head. The proofs in the case can, at the utmost, only raise a suspicion of the fairness of the transfer of the goods from Isaac to James Truitt or the firm. But if that be admitted to be fraudulent, it still could avail nothing in this suit. The plaintiff did not purchase those articles, in particular, as the goods of Isaac Truitt; and, on the contrary, his bill states that those articles are in fact unknown. If he had bought them he would probably have brought trover. The sale was of a different kind. It was of the interest of Isaac Truitt in the store as a partner, and the scope of the bill is to establish that he was a member of the firm and to have an account, showing his interest therein, and to give the plaintiff the benefit thereof, under his purchase. Now, a fraudulent sale or transfer of some of these goods did not make the vendor a partner in the business. To notice no other objection, therefore, the plaintiff must fail, for he has not proved that Isaac Truitt was in any way, either openly or secretly, a partner. Bill dismissed, with costs.

PER CURIAM. Bill dismissed.

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