Mabbett against White and others

Mabbett against White and others. A party who objects to the reading of an instrument in evidence, because the certificate of its proof or acknowledgment is defective, should specify this as a ground of objection. Where at the trial he makes only a general objection to an instrument being received in evidence, a defect in the proof or acknowledgment of its execution is not available on a review. One partner has authority to sell and transfer all the copartnership effects directly to a creditor of the firm in payment of a debt, without the knowledge or consent of his copartner, although the latter is at the place of business of the firm and might be consulted. Denio and Johnson, Js., dissented. Nor is such transfer invalid although the firm is insolvent, and thereby the one creditor acquires a preference over the other creditors of the firm. Denio and Johnson, Js., dissented. Appeal from a judgment of the superior court in favor of the plaintiff. ' The action was replevin in the cepit, commenced in December, 1846, to recover merchandise of the value of about $6000. On the trial before Justice Sandford and a jury in October, 1847, it appeared that Henry F. Mabbett and Jotham S. Fountain became copartners under the firm name of Mabbett & Fountain in March, 1846, to carry on the dry goods business in the city of New-York. The plaintiff offered in evidence articles of copartnership purporting to be signed by them, and witnessed by Hannah F. Mabbett; and on the back of. which was a certificate made by a justice of the peace stating that on the 6th of September, 1847, personally appeared before him Hannah F. Mabbett, well known to him to be the individual whose name appeared as subscribing witness to the instrument, and acknowledged that she subscribed the same. The counsel for the defendants “ objected to the reading of the articles in evidence against the defendants the objection was overruled and he excepted, and the articles were read in evidence. By these articles, which were under seal and dated April 2, 1846, it was agreed that the partnership of Mabbett & Fountain should continue six years; that Mabbett should furnish capital to carry on the business and receive semi-annual interest thereon, and that each might draw from the profits of the business not to exceed $2000 per annum. It was proved that the firm carried on business, purchasing and selling goods for cash and on credit. until the 25th of July, 1846. The counsel for the plaintiff read in evidence an instrument, dated the day and year last mentioned, executed by Henry F. Mabbett, one of the firm of Mabbett & Fountain and Hannah Mabbett, by which he, for the consideration of $2000 therein expressed, sold and conveyed to her the equal “undivided half of all the goods, merchandise and effects then in the store of Mabbett & Fountain, and all the notes, accounts and evidences of debt belonging to him, Henry F., as one of the partners in that firm, and all his interest and claim in and to the property and effects of the firm of Mabbett & Fountain, and agreed to warrant and defend the title thereto; and by which instrument she assumed and agreed to pay all the debts, or the proportion thereof, which he, as one of the members of the firm, was or might be liable to pay. The counsel for the defendants duly objected to the reading of said instrument in evidence, on the ground that the same and the facts therein contained were not evidence against the defendants ; the objection was overruled and he excepted. The counsel for the plaintiff also read in evidence a power of attorney, bearing date the 25th of July, 1846, executed by Hannah Mabbett under seal, in which the sale and transfer from Henry F. to her was recited; and it was further recited that she intended to continue the dry goods business with Fountain, and by which she constituted and appointed Henry F. her attorney for her and in her name to conduct, carry on and transact the business with Fountain as her partner, under the firm name of J. S. Fountain & Co., and authorized him, as her attorney, to purchase and sell all goods and merchandise appertaining to the business as he, the attorney, should deem proper, and in her name to execute all instruments which should be necessary in conducting and carrying on the business, and to do all acts appertaining to the same, as fully as she herself could do. It was proved that at the time of the transfer to Hannah and the execution of the power of attorney by her, there was a large stock of goods in the store occupied by the firm of Mabbett & Fountain. It also appeared that at that time Henry F. was a member of the firms of Mulligan & Mabbett and Mabbett, Mulligan & Co., which had then recently failed in business, and soon after transferred their property to trustees for the benefit of their creditors; and that the consideration for the transfer to Hannah was a promissory note made by the firm of Mabbett & Mulligan, dated in 1844, for $2000, payable to the order of Henry F., and by him endorsed to and held by her. . It was proved that after the sale and transfer to Hannah, public notice of the dissolution of the firm of Mabbett & Fountain, and of the formation of the firm of J. S. Fountain & Co. was given, and that the dry goods business was continued and done in the name of J. S. Fountain & Co., Fountain taking an active part therein, and having been shown the power of attorney to Henry F.—Hannah Mabbett resided in Dutchess county, and took no personal charge of the business. Henry F. was usually engaged during the day in another store than that occupied by Fountain & Co., but he came there every evening. The firms of Mabbett & Fountain and J. S. Fountain & Co. purchased goods and borrowed money of James Mabbett the plaintiff; and on the 3d of December, 1846, the indebtedness of ,the latter firm to the plaintiff, as claimed by him, amounted to the sum of $6286.47. The counsel for the plaintiff read in evidence another power of attorney, dated the 20th of November, 1846, executed by Hannah Mabbett, by which she constituted Henry F. her attorney, for her and in her name to execute to the plaintiff “ a sufficient amount of goods, out of the stock owned by J S. Fountain & Co., to pay and satisfy the indebtedness of such firm to James Mabbett,” and authorized and empowered Henry F. “ to select and designate from the said stock of goods of J. S. Fountain & Co., any goods which he might see fit and deem proper and capable to satisfy-such indebtedness, and to take the goods so selected and. designated by him into his possession and transfer the same to said James in satisfaction of his debtand empowered him to do every act that in his judgment might be necessary to secure the debt of - the plaintiff as fully as she could do were she acting personally in the premises. She also, by a clause contained in the power of attorney, agreed to indemnify Henry F. for making the transfer thereby authorized. It appeared that during November, 1846, the plaintiff had urged Fountain to secure his debt; and that on the 20th of that month he, the plaintiff, prepared this power of attorney and inclosed it to Hannah by mail, she then being in Madison county, and that she executed and acknowledged it on the 30th of November, and returned it by mail to Henry F. who was in New-York. The plaintiff read in evidence, after objection thereto and exception by the defendants’ counsel to the ruling admitting it, a bill of sale, dated December 3d, 1846, at the city of New-York, signed “ Jotham S. Fountain & Co., by Hannah Mabbett’s attorney, Henry F. Mabbett,” by which Fountain & Co. purported to sell and transfer to the plaintiff “ all the dry goods and merchandise contained in the store number 769 Broadway (being the store occupied by Fountain & Co.), as per inventory taken about the 27th of November (then) last, amounting to $12,300, and valued at 50 cents on the dollar of the inventoried amount,” and sold at that valuation, the price being as carried out on the bill of sale, $6150.00; “ also all the books, debts, dues, notes and demands, and all evidences of debts due the said firm (Fountain & Co.), as well as those of the late firm of Mabbett & Fountain, in amount $3187fb°o,” valued in the bill of sale as worth 60 per cent, and carried out at that price, being $1912.56, and making the aggregate price of the merchandise and dioses in action, as stated in the bill of sale, $8062.56. The plaintiff was credited on the bill of sale towards the purchase price the amount of his claim against Fountain & Co., being $6286.47, and for the balance of the purchase price, being $1776.09, he gave his note payable in one year. There was evidence tending to show that this note was paid by the plaintiff to a creditor of the firm of Mabbett & Fountain a few days after it was given. On the same day that the bill of sale was executed, the plaintiff by virtue of it took possession, or attempted to do so, of the property mentioned therein, Fountain resisting and objecting to his right to do so ; and on the next day, the 4th of December, an injunction issued out of the court of chancery in a suit wherein Fountain was complainant, and the plaintiff, Hannah and Hemy F. Mabbett, were defendants, and was served, forbidding the persons last named from disposing of or intermeddling with the property mentioned in the bill of sale to the plaintiff, and from removing the same from the store occupied by Fountain & Co. It was proved, that at the time the bill of sale was executed Fountain was at the store of Fountain & Co., in New-York, engaged in the firm business ; and that when the plaintiff*, on the evening of that day, attempted to take possession of the books and choses in action, he resisted and dissented from the transfer made to him. There was conflicting evidence as to whether Fountain at any time assented to the sale and transfer to the plaintiff, and also as to whether the plaintiff* acquired possession of the property under the bill of sale to him. There was also conflicting evidence as to whether the debt claimed by the plaintiff, mentioned in the bill of sale, was valid to the amount therein stated, and also, as to whether the sale and transfer to the plaintiff was bona fide, or made to defraud the creditors of Mabbett & Fountain, and J. S. Fountain & Co., or other persons. It appeared that both the firms last named were indebted to a large amount at the time of the transfer to the plaintiff. On the 5th of December, 1846, the defendants recovered judgment against Henry F. Mabbett and Fountain to the amount of about $5000, for goods sold them while they were carrying on business as copartners prior to the transfer by Henry F. to Hannah. This judgment was obtained by filing a declaration against Mabbett and Fountain, and serving a copy upon the latter, who thereupon retained an attorney who gave a cognovit, as attorney for the defendants, for the amount due. Execution was issued on this judgment and levied, under the defendants’ direction, on the day last named, on the goods in controversy, then being in the store in New-York occupied by Fountain & Co., and being the same goods mentioned in the bill of sale to the plaintiff. This suit was brought to recover these goods. The counsel for the defendants, when the plaintiff rested, moved that he be nonsuited, which motion was denied, • and he excepted. At the- close of the evidence he requested the court, among other things, to charge the jury: (1.) That the alleged sale by Henry F. Mabbett to his mother, Hannah Mabbett, did not disturb or change the possession of Fountain. It operated only as a transfer to her of the individual interest of Henry F. Mabbett, in his share of the surplus after payment of the copartnership debts of Mabbett & Fountain, and gave to her only the right to call upon Fountain to account to her for such surplus ; (2.) That the rights of the creditors of Mabbett & Fountain to the property were not affected by such transfer, and that upon obtaining judgment and execution they had a right to levy upon and sell the property owned by Mabbett & Fountain before the alleged transfer to Hannah, the same as if it had not been made; (3.) That the powers of attorney from Hannah to Henry F. did not empower him tó make a transfer of the whole property and effects of J. S. Fountain & Co.; (4.) That Hannah Mabbett had not authority, and could not delegate to Henry F. power to sell out the whole copartnership property and effects of J. S. Fountain & Co., to secure or pay one creditor of that firm, without the knowledge, or assent of Fountain while he was in New-York and in the management of the affairs of the firm, That the attempt to do so was fraudulent and ineffective, as against J. S. Fountain and the creditors of the firm. The court declined to charge as requested in the first and second propositions above stated; and, as to the same, charged the jury that if the sale and transfer to Hannah was made, and the business afterwards continued, with the concurrence of Fountain, she became a joint and equal owner with him of the property, and they held it in equity, subject to the payment of the debts of Mabbett & Fountain. That if this transfer was not fraudulent as to the creditors of the firm of Mabbett & Fountain, they could not levy upon the property transferred, beyond the interest of Fountain therein; but that if this transfer was made for the purpose or with the intent of hindering, delaying or defrauding creditors, it was void as to such creditors, and Hannah acquired no title as against them, and the defendants had a right, as against her, to seize the property transferred to her upon their execution. The court further charged the jury, that they must inquire whether the property belonged to Mabbett & Fountain or J. S. Fountain & Co. on the 3d of December, 1846. That if the transfer by Henry F. to Hannah was bona fide and not made to defraud creditors, the title to an undivided half of the property vested in her; but if this transfer was made to hinder, delay or defraud creditors, the creditors of Mabbett & Fountain could avoid the sale and seize the property, except in the hands of a bona fide purchaser. As to the 3d and 4th propositions above stated, the court refused to charge the jury as requested; and, as to the same, instructed the jury that the power of attorney of the 20th of November authorized Henry F. to transfer to the plaintiff property of Fountain & Co., to the extent of his debt, in payment thereof; and the power dated July 25th authorized him to sell" the entire stock of the firm. That these two powers of attorney gave Henry F. all the power Hannah had, in reference to the management of the business of Fountain & Co., and the disposition of its effects. That Hannah, as one of the firm of Fountain & Co., had power and could authorize her attorney to sell the whole stock in trade of the firm, or to apply it in payment of debts. That if the jury found that the transfer from Henry F. to Hannah was not made with intent to hinder, delay or defraud creditors or other persons, then the property, on the 3d of December, 1846, belonged to J. S. Fountain & Co., and either partner could sell the whole of the partnership effects, for money or notes, and could apply the whole, or any part of it, in payment of debts of the firm, or could pay one creditor to the exclusion of the others. That Hannah Mabbett, therefore, could make such a transfer as that made to the plaintiff on the 3d of December and it would pass the property of the firm, without the consent of Fountain, if it was not made with intent to defraud the creditors of Fountain & Co. or Mabbett & Fountain. That even if there was no authority given by Hannah to make the sale and transfer, and the jury should find that Fountain on the 4th of December assented to the sale and transfer to the plaintiff, or ratified it, this would render it valid, if there was no fraud. The counsel for the defendants excepted specifically to the refusal of the judge to charge as requested, and to each paragraph of the charge as given, above stated. The judge submitted to the jury with proper instructions the question as to the bona tides of the transfer by Henry to . Hannah, and also the question as to the amount and validity .of the plaintiff’s debt against the firm of Fountain & Co., and whether the sale and transfer to him was fraudulent. The jury found a verdict in favor of the plaintiff and assessed the value of the property at $5685.50. The defendants, on a bill of. exceptions, applied to the superior court at a general term for a new trial, which was denied, and judgment rendered on the verdict. The defendants appealed to chis court. Francis B. Cutting, for the appellants. L. B. Shepard, for the respondent. [MAJORITY — Hand, J.] Hand, J. The proof of the execution of the articles of copartnership between H. F. Mabbett and Fountain was insufficient. The certificate of the officer merely stated that the witness acknowledged that she subscribed the same. But there was only a general objection to its being received in evidence against the defendants, without specifying any ground whatever for that objection. Had that been done, perhaps the plaintiff would have produced the necessary proof. The .transfer of the interest of Henry F. Mabbett, in the concern of Mabbett & Fountain, to Hannah Mabbett, was sufficiently proved. It was not necessary that the vendee or assignee should be called as a witness for that purpose. It was enough for the plaintiff, that the contract of sale was duly acknowledged by one of the parties to it, and proved by the subscribing witness as to the other; and if the testimony of Hannah Mabbett would have thrown suspicion over the transaction, she could have been called by the defendants. The consideration, too, prima facie, was sufficient. She was to pay the debts, and she gave up the note for $2000, which, from the testimony, it seems, would have been paid to her if she had presented it for that purpose. And nothing was thereby deducted from the assets of Mabbett & Fountain, to pay the debts of Mabbett & Mulligan; for she took all the interest of Henry F., and became liable to pay his share of those debts. The embarrassments of Mabbett & Mulligan may have led to this transfer; but nothing appears by which it can be inferred that any of the parties to it intended to defraud the creditors of Mabbett & Fountain; and besides, upon that question the jury found for the plaintiff. Nor can it be doubted that Hannah Mabbett became a copartner with Fountain from that time ; at least, as between the parties.' Personally she took no active part; but the transfer of the interest of Henry was complete, and she was immediately recognized by Fountain as a partner, and her power of attorney to Henry was then shown to him; Fountain changed the style of the firm, and put up a sign bearing the new name; the bank account was also transferred accordingly; and all the business thenceforth was done under the name and style of the new copartnership. One partner cannot introduce a new member into the firm without the consent of all the old members, but here was sufficient evidence of such consent. (See Jeffreys v. Smith, 3 Russ., 158.) The words used in the assignment, ‘ one equal undivided half of the goods,” &c., perhaps, by a critical reading, might be construed to mean the interest of the assignor in a moiety. (Heydon v. Heydon, 1 Salk., 392; Coll. on Partn., by Perk., § 392; Johnson v. Evans, 7 M. & G., 240.) But in a subsequent clause he also transfers to her all his interest and claim to the property of every nature and kind belonging to the firm. The power of attorney, given on the 25th day of July, 1846, by Hannah Mabbett to Henry F. Mabbett, was sufficient to authorize the latter to do every act necessary to be done by a partner; certainly in the ordinary course of the business. Indeed, the language is so broad, that I am inclined to think if one partner can himself transfer all the partnership effects, and can delegate authority to another to act for him in such cases, this power of attorney did authorize the agent to do so. But in addition to this, and upon the same .principle, the power of attorney, also given by her to Henry, dated on the 20th of November, 1846, although some part of it was not very aptly expressed, was abundantly sufficient to authorize the transfer of the goods of the firm of J. S. Fountain & Co. to pay the debt of that firm to the plaintiff. It empowered him “ to make, execute and deliver” to the plaintiff “ a sufficient amount of goods out of the stock of goods now owned by J. S. Fountain & Co., to pay and satisfy the indebtedness” of that firm to him. That debt exceeded the value of all the goods, at the time of the transfer under which the plaintiff'now claims. The objection to so much of the proof of what Hannah Mabbett said, and afterwards wrote, as was finally admitted by the court, was not well taken. Such evidence was admissible so far as it tended to show an authority to Henry to make the transfer to the plaintiff. If she wrote to him to do so, or if she told him to do so, that could be shown as an act, as a part of the evidence of the plaintiff’s title. A sale to pay the debt of the company under such an authority would be sufficient, at least, as to her, especially if possession was given; and even if the instrument under seal was not sufficient, this might be ; and if the evidence was not given to explain or vary the power under seal, or such additional authority was not given at the same tune, but was an independent transaction, and before the sale, the evidence was admissible. The power of attorney under seal did not prevent her from appointing the same person agent with other powers, or from giving other instructions. But nothing that she said or did .could affect the rights of the defendants, after they had caused the levy upon the property. So too, proof of the acts of Henry F. Mabbett, as her agent, and of Fountain, before that time, were admissible, so far as they were evidence of a contract, and that plaintiff had taken possession. And for such purposes only, I understand the court to have admitted them. The principal question in this case is, as to the power of Hannah, by her attorney, to convey or transfer the property in question to the plaintiff. No doubt, if the transaction between Henry and Hannah Mabbett was for the purpose of defrauding the creditors of Mabbett and Fountain, or the transfer to the plaintiff was for that purpose, or to de-fraud the creditors of J. S. Fountain and Co., such transfers were void as against the creditors of those firms, respectively, whether with or without the concurrence of Fountain. On those points, the jury have found for the plaintiff. But the judge at the circuit also told the jury that the assent of e the partner, Fountain, was not necessary if there was no intention to defraud. In order, therefore, to sustain this judgment, we must hold that where there is a debt due to a bona fide creditor from the firm, one 'member of it may transfer all the goods and chattels of the firm to such creditor to pay the debt, without the knowledge or consent of the other partner who was present or could have been consulted, there being no intention to defraud the creditors of the firm. The right and power of one partner to transfer all the effects of the firm for the payment of debts, without the consent of his copartners, has been the subject of conflicting opinions. It is not necessary, in this case, to decide whether he can make an assignment to a trustee for that purpose. (See Havens v. Hussey, 5 Paige, 30; Deming v. Colt, 3 Sandf. R., 284; Hayes v. Heyer, id., 293; Hutchinson v. Smith, 7 Paige, 26; Anderson v. Tompkins, 1 Brock. R., 456; Harrison v. Sterry, 5 Cranch, 289.) But it seems to be pretty well settled, that one member of a firm can convey or pledge all the partnership effects directly to a creditor, in payment, or for the security of a debt due from the company, if there be no fraud. (See Egberts v. Wood, 3 Paige, 517; Harrison v. Sterry, supra; Anderson v. Tompkins, supra; Fox v. Hamburg, Cowp., 445; Piersons v. Hooker, 3 John. R., 68; Robinson v. Crowder, 4 McCord's R., 519; Mills v. Barber, 4 Day's R., 428; Tapley v. Butterfield, 1 Metc., 515; 3 Kent, 44; Halsey v. Whitney, 4 Mason, 206; Smith's Merc. Law, 79; Coll. on Part. by Perk., §§ 384, 394, 395; Stor. on Part., § 101; Cary, 25, 29, 30; 1 Parsons on Cont., 154; Watson on Part., 105; Morgan v. Marquis, 9 Exch. R., 145; Gow. A. P. C., 132, 135, a; 4 B. & C., 867.) The difficulty is in determining what circumstances will make such transfer fraudulent. Does the fact that one of the partners, not absent but at their place of business, does not know of it and is not consulted, and that the assignment is of all the personal effects of the firm, and that it is to one, or a portion only of the creditors, make it fraudulent ? The relation subsisting between partners is of the most intimate and confidential nature. They are joint tenants of the stock and effects of the company; their interests are joint and mutual, and each is seized per my et per tout; each has entire possession, as well of every part as of the whole; and each of two partners has an undivided moiety of the whole,, and not the undivided whole of a moiety. A partnership is a voluntary association, by which in all the affairs connected with the business an authority is impliedly given to every member to dispose of the partnership property as if it were his own personal effects. Such is the indivisible nature of their interest, and the capacity of every member to act as the authorized agent of all, that whatever one does in the course of the partnership business has the same efficacy as if all had severally and directly joined in the act. But it is said the disposition of all the personal effects of the firm to pay one creditor, without the consent of the other member of the firm, when he is present or can be consulted, is not an act in the course of the partnership business, but is a virtual dissolution of the partnership, and fraudulent as to such member. But, as we have seen, one partner, in the absence of fraud on the part of the purchaser, has,the complete jus disponendi of the whole of the partnership interest. The author of a treatise on mercantile law lays down the broad proposition: “ Provided the contract have a sufficient relation to the business of the firm; and the contractor have, in other respects, acted bona fide, it matters not much what may be its description, nor how grievous the contracting partner’s fraud and misconduct.” (Smith's Merc. Law, 79.) And the cases seem to go to that extent. (See Coll. Part., § 445 et seq.; Cary on Part., 29, 30.) And, certainly, a creditor has a right to seek and obtain from his debtor a preference for or payment of his debt to the exclusion of other creditors; and that without the imputation of fraud upon either party. I do not say that in no case would equity interfere m favor of a firm against a third person, in case of a contract oí sale by one member. But this is an action at law between creditors, and the jury have negatived all fraud in fact on the part of the plaintiff; so that it is simply a question as to the power of sale by one member without the consent of the other, of all the partnership effects to pay the partnership debts. If the title to the articles of merchandise in question passed at law, the judgment must be affirmed. This sale may have broken up the firm; but there was no agreement between the members of the firm of J. S. Fountain & Co., that it should continue for any definite period. But if there had been, the dissolution (if such was the result) was a mere consequence which did not affect the sale. This jus disponendi of each partner is for the advantage of trade and commerce, and no doubt strengthens the credit and benefits the partners themselves; but, however that may be, it is sufficient for the creditor, who receives the property in payment of his debt, that it exists and has been exercised in his favor without any fraud on his part. The judgment must be affirmed. Gardiner, C. J., Dean, Crippen and Marvin, Js., concurred in the foregoing opinion. Ruggles, J., took no part in the decision. [DISSENT — Denio, J. (Dissenting.)] Denio, J. (Dissenting.) If the transaction of the 25th July, 1846, by which Hannah Mabbett became in form the owner of one-half of the stock in trade which, up to that time, had belonged to Mabbett & Fountain, was a valid transaction, the goods which were subsequently seized upon the defendants’ execution against Mabbett & Fountain, did not belong to the defendants in the execution, and were not, generally, liable to that process. The individual interest of Fountain, in the goods of J. S. Fountain & Co., was liable to seizure, and for the purpose of reaching it, the sheriff might take possession of and sell the goods; but the purchaser would acquire no interest except subject to the adjustment and liquidation of the partnership liabilities. (Walsh v. Adams, 3 Denio, 125.) But although the sheriff might seize the corpus of the property, he could only sell the interest of Fountain; and if he undertook to sell generally, as though the goods were fully subject to the execution, he would be a trespasser. (Waddell v. Cook, 2 Hill, 47.) When the present suit was commenced, the sheriff had gone no further than, to seize the goods, and this he was Justified in doing, if they belonged to a copartnership of wnich Fountain was a member. The plaintiff, to maintain the action, was therefore under the necessity of establishing both the sale by Henry F. to Hannah Mabbett, and the transfer by the firm of J. S. Fountain & Co., consisting of Fountain and Hannah Mabbett, to the plaintiff. So far as matters of fact are concerned, the jury have passed upon both transactions in favor of the plaintiff, and it remains to determine whether any errors were committed by the judge, in receiving the evidence, in allowing the case to go to the jury, or in his instructing or refusing to instruct them in matters of law. A great number of exceptions were taken to each class of the rulings of the judge; but it will not be necessary to examine them all, and I think not more than one of them. The question as to the validity of the transfer made by Henry F. Mabbett, as the attorney of Hannah Mabbett, in the name of J. S. Fountain & Co., to the plaintiff, raises the most material of the questions which have been discussed on the argument. This point arose on the motion for a nonsuit, which was denied; but as the transaction was more fully explained by the subsequent testimony, I propose to examine it in reference to the instructions giren by the judge to the jury. He charged in terms that either partner of the firm of J. S. Fountain & Co., without the consent of the other, could sell the whole partnership effects for money or notes, or could apply the whole or any " part of them in payment of debts, or could pay one creditor to the exclusion of others. The defendants’ counsel distinctly excepted to this portion of the charge. The instruction, though in the form of an abstract proposition of law, referred solely to the instrument of the 3d December, 1846, by which the plaintiff obtained the only title to the property which, before that time, belonged to J. F. Fountain & Co., which he asserts in this action, and the judge in his subsequent remarks so applied it. Fountain & Co, had then on hand goods to the nominal value of $12,300, according to an inventory made a few days before, and choses in action amounting nominally to $3187.60. The firm was in insolvent circumstances, and, among other debts, owed the plaintiff $6286.47, and the defendants a large amount. Fountain was at the place of business of the firm, actively engaged in carrying it on. The other partner, Hannah Mabbett, took no part personally in the business, but acted by her attorney, Henry F. Mabbett, who was occasionally in attendance at the store, and I will assume, had all the power which Hannah Mabbett herself could have exercised had she been personally present. H. F. Mabbett, acting for Hannah Mabbett by an instrument, having the effect of a bill of sale, conveyed to the plaintiff all the goods of the firm and all their choses in action, embracing together all their property of every kind. For the purpose of the transaction, the goods were estimated, and I will assume accurately, to be worth 50 per cent, and the notes and accounts 60 per cent of their, nominal amount, making $8062.56, and exceeding by $1776.09 the amount of the plaintiff’s debt. For that balance the plaintiff gave his note to H. F. Mabbett, the amount of which was afterwards applied by the plaintiff in the payment of other debts of Fountain & Co., which payments were', of course, further preferences. This transaction was without the knowledge of Fountain, and was known both by the plaintiff and H. F. Mabbett, to be without his consent and in opposition to his wishes. There was evidence on both sides as to a subsequent assent by Fountain to this transfer; but this is not material to be considered, as the judge charged the jury that it "was valid whether he assented or not. I am of opinion that this ruling cannot be sustained. I am aware”that the authority of each of the several partners, as the agent of the firm, is very great. It extends to all the goods of the firm, and warrants sales, mortgages and pledges, and every variety of transactions incident to the business - in which they are engaged. But it is not wholly without limit. It must necessarily be confined to the scope and object of the business, and in the course of its trade and affairs. It is no objection that the tendency and ultimate effect of a transaction entered into by one partner, is disastrous or even destructive to its business. But this transfer was made with the deliberate intent and purpose of putting an end to the partnership enterprise, of wholly subverting its objects; and such was its effect. This is apparent not only from its embracing every portion of its means to carry on business, hut from the fact that forcible possession was immediately taken of its books of account, and of the store in which the business had been carried on. I have carefully examined the several cases upon this question which were cited at the bar, and such others as I could meet with; and I think there is no well considered judgment which would justify this transfer. The two cases which have been decided in the late court of chancery, are entitled to primary consideration. In Egberts v. Wood (3 Paige, 517), the transfer which was in controversy was made after the dissolution of the firm, and when the authority of the partners as such, had ceased. The assignment was not sustained, and what was said by the chancellor as to the effect of such a transfer by a partner during the existence of the copartnership, was obiter. Besides, I think it apparent from his remarks as to the validity of the assignment by one partner, against the known wishes of his copartner, that he would not have justified the transfer now under consideration. In Havens v. Hussey (5 id., 30), the assignment was to a trustee, and his creditors were to be paid according to certain preferences. It was adjudged void. The same question was decided in a similar manner in Hitchcock v. St. John, (1 Hoff. Ch. R., 511.) A like judgment was pronounced in Deing v. Colt, and in Hayes v. Heyer ( 3 Sandf. S. C. Rep., 284, 293), where the assignments were to a trustee without preferences, and in Hayes v. Heyer (4 Sandf. Ch. R., 485), the same able judge who tried this cause, thought the question on an assignment without preferences, a very difficult and doubtful one, which, in the case then before him, he declined to decide. There is a class of cases where the acts of one partner in transferring the partnership effects, have been held valid on account of the absence of the other partners. Thus, in Harrison v. Sterry (5 Cranch, 289, 300), the assignment was by the managing partner in the United States, the other partner being in England; besides, it was partial, not embracing all the effects of the firm. So in Anderson v. Tompkins (1 Brock., 456), decided by Chief Justice Marshall. The firm were transacting business in Virginia. One partner had embarked for England, and the transfer was made by the other who remained in this country; and that circumstance was relied upon by the court. So also in Deckard v. Case (5 Watts, 22), the transfer was of specific articles, but it in fact embraced all the property of the firm; an execution had been .levied upon it, and one of the partners having absconded, the conveyance was executed by the other, and the object of it was to enable the creditors to whom the property was conveyed to prevent its being sacrificed, it consisting of unfinished articles in the course of manufacture. The court said “ Mead, the absconding partner, aware that the property had been taken in execution, abandoned all care of it; from, necessity, then, the other partner should have the power of disposal in payment of the debts of the firm.” Again, in Hennessy v. The Western Bank (6 Watts & Serg., 300), the assignment was of the entire property with preferences, by two of the partners, the other being absent, and the case was placed on the authority of Deckard v. Case. There are a few other cases which do not fall within this distinction, but suggest views favorable to the conclusion at which I have arrived. In Dickinson v. Legare (1 Dessaas., 537), it is held that one partner of the existing copartnership could not make a transfer of all the partnership effects. In Pearpoint v. Graham (4 Wash. C. C. R., 232), Judge Washington expressed great doubts whether one partner could make an assignment of the entire property of the concern, but finally held in favor of the assigmnent on the ground of a ratification by the non-executing partner. Mills v. Barber (4 Day, 428), was an assignment of a single chose in action, and does not appear to have affected the entire business of the firm. A good deal of stress is placed in several of the cases, particularly in the one referred to from 5th Paige, and in those from 3 Sandford’s Superior Court Reports, upon the fact that a trustee was interposed between the parties and their creditors by the act of one of the partners; and this, no doubt, is a circumstance which strikingly shows that the transfer is without the scope of the partnership enterprise. I think there is something of the character of a trust in this case. The plaintiff’s debt would not cover the entire value of the property after all deductions were made; for the balance a note was given, and it is pretty obvious that this was to be used in making other preferences, and it was actually used for that purpose. It is fair to infer that such was the intention of the plaintiff and H. F. Mabbett. But waving that consideration, the fact that the property was of greater value than the plaintiff’s debt, and yet that it was all conveyed to him, shows that there was another object .than the payment of the plaintiff’s debt; that object, apparently, was to take the whole of the copartnership business quite out of the hands of Fountain, and wind it up according to the views of the plaintiff and H. F. Mabbett. This, I think, exceeded the power of one partner. It was not within the scope of the contract of partnership, but intentionally subversive of it. I think, therefore, that an error was committed on the trial, and that the judgment should be reversed. Johnson, J., concurred with Denio, J. Judgment affirmed.