Carpenter v. Creal — 6 Hill & Den. 556

Majority

p. 556

Carpenter & Gilbert vs. Creal and others.

Headnote

In an action to charge A., B. and C,, as partners, for goods sold to A. alone, it appeared that A. and B. had assigned their property, in trust to pay the debts due from them “jointly and severally, or where either was endorser or surety for the other that the assignees had debts against the assignors jointly and severally; and that the assigned property was insufficient to pay the debts charged on the fund. ' Held, that the assignees were not competent witnesses for the plaintiff to, prove the alleged partnership. ■

Motion to set aside the report of a referee. The action was for goods sold to Cyrus Creal, and the plaintiffs sought to charge the defendants John and John W. Creal, as partners with Cyrus. John W. and Cyrus Creal had assigned certain property to Charles Carpenter and Winsor Brown, in trust to pay the debts due from the assignors “ jointly and severally, or where either is indorser or surety for the other, rateably in proportion to the amount of the debts.” The assignees had debts against both of the assignors jointly, and also against each of them separately. They had taken possession of the assigned property, which was not sufficient to pay the debts charged on the fund. The referee admitted both of the assignees as witnesses for the plaintiffs to make out a partnership against the three defendants, although John and John W. Creal objected that the witnesses were incompetent. A report having been made for the plaintiffs, the defendants John and John W. Creal now moved to set the same aside.

J. Ellsworth & D. Wright, for the defendants.

E. Pearson, for the plaintiffs.

The parties are agreed that the property was assigned to pay, so far as it would go, the debts which the assignors owed either jointly or severally; and such I think is the true construction of the assignment. If the alleged partnership is not established, the debt due the plaintiffs is clearly a charge on the trust fund; for the goods were sold to Cyrus Creal, one of the assignors, and his liability is not questioned. But if the partnership can be established, this will then be the debt of the three defendants; and I think the assignors did not contemplate the payment of a debt which they owed jointly with a third person. If this be so, and the plaintiffs recover, their debt will no longer be a charge upon the trust fund; and the two assignees, as creditors of the assignors, had a direct interest in making out the partnership. The effect will be to relieve the fond from the burden of the plaintiffs’ debt, and so increase the dividend which the witnesses would otherwise receive from the assigned property.

If a debt against the three defendants would be a charge upon the trust fund, I still think the two assignees were interested witnesses. They were sworn to make out a partnership against all the defendants; and if the debt of Cyrus can thus be collected from John and John W., or either of them, the trust fond will of course be relieved from this burden, and the two witnesses will receive an increased dividend on their debts from the avails of the assigned property. And so in any view of the case, the two witnesses were incompetent, and should have been rejected.

Motion granted.