Briggs v. Briggs & Vose — 15 N.Y. 471

Majority

p. 471

Briggs against Briggs & Vose.

Headnote

The defendants were partners, and as such contracted to receive and sell, on commission, a quantity of lumber to he forwarded to them by the plaintiff. Before it was all sold Briggs retired from the firm, and the business was continued by Vose on his own account. Held, That Briggs was jointly responsible with Vose to the plaintiffs for the proceeds of their lumber received by Vose after the dissolution.

Appeal from a judgment of the Supreme Court. The action was brought to recover the net proceeds of a quantity of lumber alleged to have been sold by the defendants, on commission, for and on account of the plaintiffs. The question was, whether the defendant Briggs, who alone defended, was liable as a partner of Vose, who was conceded to be indebted to the plaintiff in "the amount claimed. The case was tried by a sole referee. It appeared that on the 23d of March, 1850, the defendant, Vose, was in Tompkins county, where the plaintiff lived, and then paid him $100, for which he took his receipt, in which the money was expressed to be received from Franklin Vose & Co. (the name of the firm composed of the two defendants, who were then lumber dealers in Albany), “ in advance on a lot of pine lumber, said to be from eighty to one hundred thousand feet, delivered at Ithaca at the opening of navigation.” It did not appear at what time the lumber was delivered at Ithaca, but the referee found that it was received by the defendants previous to the dissolution of their copartnership, which took place on the first day of July, 1850, and became known to the plaintiff in the latter part of that month. On the dissolution, the defendant, Briggs, retired

p. 472

from the business, which was continued by Vose. The referee further found that the lumber was sold by the defendants, or one of them, between the 6th day of May and the 21st of August, 1850. Of the amount of the sales the sum of $550.54 was for those made by Vose after the dissolution of the firm. There remained unpaid $321.27, which the plaintiff demanded before the commencement of the suit. A payment of $67.71 had been made, by a draft by the plaintiff on Vose individually, September 9, 1850, which the latter accepted and paid. Vose failed in business in the spring of 1851. The referee decided that .both the defendants were liable for the balance. The judgment was affirmed at a general term. ( 20 Barb., 477 .) The defendant Briggs appealed, and the case was submitted on printed briefs.

Ferris & Cushing, for appellants.

Boardman & Finch, for respondent.

The complaint is not simply for monej had and received by the defendants to the plaintiff’s use, but it sets out the contract of the 23d March, 1850, as an undertaking of the defendants to sell the plaintiff’s lumber on commission, and account for and pay over the proceeds to them; and it alleges a breach of that contract in refusing to pay over the balance of the,proceeds. The evidence and the finding show that the defendants received the lumber pursuant to the contract, while they remained partners, but before it was all sold Briggs retired from the firm, and Vose, continuing the business, made the remaining sales, but neglected to pay over the proceeds. On this state of the case I see no room to question the liability of Briggs. He was a party to an express contract and was bound to see to its performance. The principle, and its application to the case of factors, where one of a firm retires before the contract

p. 473

is completed, is well settled. ( Godfrey v. Saunders, 3 Wils., 114; Whiting v. Farrand, 1 Conn. R., 60; Wells v. Ross, 7 Taunt,, 403.) In the last case, the Court of Common Pleas held, upon facts precisely like the present, that the partner who continued the business and made the sales was liable to the principal, on a count for money had and received, and they said he was alone liable in that form of action; for the retiring partner, they said, “ never received. any part of the price;” but the court was careful to add, that an action on their joint undertaking would have lain against both. "Without determining whether the retiring partner could, in ur courts, have defended himself on that distinction, it is eaough.to repeat that this action is upon the express contract, and that in such a case there never was any doubt respecting the liability of both contractors, though one retired before the contract was fully performed. The judgment must be affirmed. ,

When the copartnership ceases, the copartners cease to be the agents -of one another, and have no power to act for or bind each other. This, however, is true only in respect to future transactions. For the purpose of winding up the affairs of the concern, and executing agreements which could not be fulfilled during the existence of the firm, the partnership subsists after dissolution, and the necessity for the existence of this limited power by one partner to act for and bind the other, is as great as ever. “ There may be a partnership where, whether the parties have agreed for the determination of it at a particular period or not, engagements must, from the nature of it, be contracted which cannot be fulfilled during the existence of the partnership, and the consequence is, that for the purpose of making good their engagements with third persons, it must continue. And then, instead of being as it was, a general partnership, it is a general partnership determined, except as it still subsists for the purposes only of winding

p. 474

up the concern.” ( Opinion of Lord Eldon in Crawshay v. Collins, 15 Ves., 227.)

The counsel for the appellants assumes that the debt or obligation in this case was created after the dissolution This is an error. The defendants were copartners in the business of selling lumber upon commission, in the city of Albany. During the continuance of the firm, they received from the plaintiff and his assignor, certain lumber to be sold in the usual course of their business. Upon the credit of the property, they advanced the sum of $100. The contract was made and the money advanced in March, 1850. In May and July of the same year, the lumber was delivered. The firm was dissolved, by mutual consent, on the first of July, which was known to the plaintiff in the latter part of the same month, but whether before or after the delivery of the last portion of the lumber, does not appear. Indeed, it is not material, for the.contract was made with the firm, and it was in process of execution at the time the dissolution was effected. The business was continued by Vose alone. At the time- of the dissolution the sales did not exceed $100, and upon an account stated at that time there would be nothing due to the plaintiff. The defendants were not the mere agents of the plaintiff. They were much more. They were joint contractors with him to receive his lumber into their own possession, sell it, and account to him for the proceeds. The contract was made with the firm before the dissolution and for aught that appears in the evidence or the facts found by the referee, it was executed on the part of the plaintiff, by the delivery of the lumber, before he became aware of the dissolution. The duty and obligation, therefore, which the defendants owed to the plaintiff in respect to the lumber, was incurred before the dissolution. It was one of those transactions in respect to which the partnership still subsisted, and the power of one partner to bind the other remained in full force. Either partner had authority to sell the property.

p. 475

after the dissolution, and collect the proceeds of the sales; and in so doing, he acted not only for himself, but also as the agent of him who was his copartner. It is manifest, after the contract was consummated and the property delivered, that the defendants could do no act, without the concurrence of the plaintiff, to modify, or relieve themselves from,their obligation to sell and account for the proceeds of the lumber. The credit given to the defendants and the confidence reposed in their ability by the plaintiff, must be taken to be an essential element of the contract. He did not confide in Yose alone; it was to both Yose & Briggs that he intrusted his property, and whatever may have been the effect of the dissolution in respect to themselves, their duty and obligation to the plaintiff remain unchanged. (2 Kent's Com.,63 ; Coll, on Part., 118, 121; Murray v. Mumford, 6 Cow., 441 ; Godfrey v. Saunders, 3 Wils., 114 ; Willet v. Chambers, Cowp., 814 ; Wells and others v. Ross, 7 Taunt., 403.)

The judgment of the Supreme Court should be affirmed

All the judges concurring,

Judgment affirmed