DocketNumber: No. 1214
Citation Numbers: 10 Wash. 492, 39 P. 138, 1895 Wash. LEXIS 12, 28 L.R.A. 89
Judges: Hoyt
Filed Date: 1/8/1895
Status: Precedential
Modified Date: 10/19/2024
The opinion of the court was delivered by
This action was heard in the superior court upon stipulation of counsel, and an agreed statement of facts. By the stipulation it was agreed that the cause should be tried as one in equity, upon such statement of facts, without the introduction of other testimony. From this statement it appeared that in October, 1865, Samuel Atkinson and George E. Allingham were doing business as-
We find it unnecessary to discuss all the reasons for reversal relied upon by appellants, as the respondent seeks to sustain the decree upon only two substantial grounds. One that since the deed from Atkinson to the appellants, or those under whom they claim, upon its face purported to convey only his individual interest, and was joined in by his wife, it must be assumed that it was not intended to convey more than the interest of said Atkinson in the property as a tenant in common. This claim would have much force were there no facts in the case tending to explain or help out the deed, but, unfortunately for this contention, it is agreed in the statement of facts that this conveyance was made by Atkinson as the surviving partner of the firm, and in the light of this concession it cannot be held in a court of equity that it only had the effect of conveying his individual interest.
At the time of the death of said Allingham the statute in relation to this question enacted in 1862 was in force, and it is claimed on the part of the appellants that this statute must govern, while the respondent contends that since there was no attempt to pass the title to the property in question until 1883, the law upon this same subject enacted in 1873 must control.
In our opinion, for the purpose of this case, the contention of the appellants must be sustained. It appears from the agreed statement of facts that the debts were all paid before the passage of the act of 1873, and that the surviving partner had taken possession of this property as his own to reimburse himself for the moneys advanced by him in paying the debts of the firm, and that for that purpose he had paid out a sum in excess of the value of all its property. This being so, a court of equity will sustain his self-asserted title to the property, if at that time it would have been in his power to have conveyed the property to another for the purpose of paying such debts. This would not be the effect
We have carefully examined the provisions of the statute of 1862 in the light of the authorities cited upon the part of appellants and the respondent, and are compelled to hold that it did not terminate the common law rights of the surviving partner. There was no method pointed out by which the surviving partner could set the machinery provided for in the statute in motion, and unless it was put in motion by the representatives of the deceased partner it could have no effect upon the partnership property. This being so, it cannot be presumed that the legislature intended by its enactment to destroy the common law interest of a surviving partner which had theretofore existed. If such rights were cut off, iu what capacity would the surviving partner hold, until such time as some one over whom he had no control should put the statute in motion? We are unable to think of any status under which he could so hold which would be at all satisfactory, or would not be productive of gross injustice to the surviving partner. He could undoubtedly be compelled to pay the partnership debts, and, if he could make no use of the partnership property for that purpose, would have to pay them out of his own funds, and by the negligence or default of the representatives of the deceased partner might be kept from reimbursing himself for moneys thus advanced for an indefinite period. Such a result could not have been intended by the legislature, and the language used in its enactments must not be so construed as to effect it, unless it is the only construction possible. There are no exclusive words in the statute, and the evident object of the legislature in its enactment will be better subserved
We have carefully examined the cases holding to the contrary of this view, cited by the respondent. The principal ones are from the state of Maine, and while we entertain the highest degree of respect for the learning and ability of the courts of that state, we are unable to agree with the reasoning of those cases. We have not had an opportunity to carefully examine the statutes therein construed, but if they were similar to ours, the court overlooked the fact that thereunder it was not in the power of the surviving partner to set on foot administration of the partnership affairs, which fact furnishes the strongest reason for holding that the statute is not exclusive of common law rights.
It follows from what we have said that at the time of the death of Allingham, Atkinson was entitled to proceed to close up the affairs of the partnership under the rules of the common law, and this being so, under the facts agreed upon, a court of equity will give no relief at this time to the representatives of the deceased partner.
The judgment will be reversed, and the cause remanded with instructions to dismiss the action.
Dunbar, C. J., and Stiles, J., concur.