Bailey v. Cooper

The horses were properly assessed to Charles W. Bailey Son in whose care they were. That the firm had the care of them on the first day of April, 1914, appears from a reasonable interpretation of the facts reported. The fact that they were the individual property of one of the partners, who did not disclose his ownership, does not render the assessment to the firm illegal; for the statute (P. S., c. 56, s. 10) provides: "Animals liable to be taxed kept in any town . . . owned by a person not resident therein, shall be taxed in such town, to the owner or person having the care thereof, on the first day of April, whether such person be a resident in the town or not, and the consent of the person having such care to be taxed for the same, shall not be necessary, but he shall have a lien on such property for the amount of the tax paid by him." Argument is unnecessary in support of the defendant's claim that the assessment was legal.

The second position of the plaintiff is that the distraint of the lumber was illegal; but this is also without substantial merit. As the assessment of the tax upon the horses to Charles W. Bailey Son in whose care they were was valid and binding upon the firm, although the property in fact belonged to the plaintiff, the argument that the levy upon the plaintiff's lumber is in effect an attempted appropriation of his property to pay the tax upon the property of another person, disregards the legal rule or principle that his property was liable to be taken to satisfy the tax against the firm, of which he was a member. It was the duty of the firm to pay the tax on his horses, and his duty as a partner to see that it was paid. VanDyke v. Carleton, 61 N.H. 574, 579. Hence his lumber was liable to be taken in satisfaction of the tax on the firm property. P.S., c. 60, s. 10.

It is also urged by the plaintiff that the notice by the collector of his purpose to distrain the lumber was not addressed to Charles W. Bailey Son, but to Charles Bailey Son and that this error renders the notice void. But as it does not appear that the plaintiff was misled or that there was any other firm in the vicinity of the name of Charles Bailey Son, this slight misnomer does not seem to be of material consequence. VanDyke v. Carleton, supra.

Nor is the misdescription of the lumber in the notice as "belonging to you," that is, to Charles Bailey Son to whom the notice was addressed, a defect of which the plaintiff can complain in this suit. Whether the lumber belonged to the firm or to the plaintiff, a member of the firm, it was distrainable for the tax in question. In the absence of any suggestion that the plaintiff was prejudiced in any way by the inaccurate description of the title to the lumber, or that he did not understand it was his property the collector had seized, his claim on this point is so purely technical that it cannot be sustained.

It is further suggested that as the senior member of the firm died before the date of the notice, the notice was in effect addressed to no one, and was therefore ineffectual. But the plaintiff upon the death of the former partner became the surviving partner and was the sole representative of the firm with reference to existing partnership obligations (Benson v. Ela,35 N.H. 402, 419), and for the purpose of receiving legal notice of the proposed enforcement of the tax assessed against the firm.

If other questions relating to the validity of the tax or of the distraint might be raised on the facts, it is unnecessary to consider them in the absence of any reference to them in the argument for the plaintiff.

Judgment for the defendant.

All concurred.