Arnold v. Greene

Supreme Court of Rhode Island

Arnold v. Greene

5 A. 503, 15 R.I. 348, 1886 R.I. LEXIS 40

CourtSupreme Court of Rhode Island

DecidedJuly 10, 1886

StatusPublished

Cited by1 cases

This text of 5 A. 503 (Arnold v. Greene) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arnold v. Greene, 5 A. 503, 15 R.I. 348, 1886 R.I. LEXIS 40 (R.I. 1886).

Pincite

Opinion

Per Curiam.

The first question in logical order is, whether the written discontinuance filed by the plaintiff Thurston was effectual to take the case out of court. Although where partners are plaintiffs, and the obligation sought to be enforced is to the partnership, the right of one plaintiff to discontinue the action against the will of his co-plaintiff is generally conceded, he will not be permitted so to discontinue the action when shown to be acting in fraud or collusion with the debtor, or when it appears that the remaining plaintiff will suffer injury. Noonan et al. v. Orton, 31 Wisc. 265, 274-276; Loring v. Brackett, 3 Pick. 403; Winslow v. Newlan, 45 Ill. 145; Holkirk v. Holkirk, 4 Madd. 50. In such circumstances, the most which the plaintiff desiring to discontinue can require is indemnity from his co-plaintiff in case judgment should go for the defendant. Winslow v. Newlan, 45 Ill. 145.

We do not think that a new trial should be granted. The only ground upon which a new trial could be granted is, that it was competent for the plaintiff Thurston, as a copartner, to authorize a sale under the mortgage upon credit. We do not think it was competent for him to do this. The mortgage contained a power of sale which expressly provided the terms upon which the sale was to be made, and it did not authorize a sale upon credit. This mortgage was the act of both partners. When the mortgagee took possession under his mortgage, the mortgaged property ceased to be stock in trade. We think the mortgagee was bound, in exercising the power of sale, to pursue the terms of it, and that neither partner could release him from his obligation under the power without the concurrence of the other; and therefore, if he sold upon credit by permission of one copartner only, he gave *350 credit on his own risk, and is not entitled to charge the mortgagors with the expenses which resulted from giving it.

William B. Beach, for plaintiff Arnold. Benjamin M. Bosworth, for defendant.

Exceptions overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The first question in logical order is, whether the written discontinuance filed by the plaintiff Thurston was effectual to take the case out of court. Although where partners are plaintiffs, and the obligation sought to be enforced is to the partnership, the right of one plaintiff to discontinue the action against the will of his co-plaintiff is generally conceded, he will not be permitted so to discontinue the action when shown to be acting in fraud or collusion with the debtor, or when it appears that the remaining plaintiff will suffer injury. Noonan et al. v. Orton, 31 Wisc. 265, 274-276; Loring v. Brackett, 3 Pick. 403; Winslow v. Newlan, 45 Ill. 145; Holkirk v. Holkirk, 4 Madd. 50. In such circumstances, the most which the plaintiff desiring to discontinue can require is indemnity from his co-plaintiff in case judgment should go for the defendant. Winslow v. Newlan, 45 Ill. 145.

We do not think that a new trial should be granted. The only ground upon which a new trial could be granted is, that it was competent for the plaintiff Thurston, as a copartner, to authorize a sale under the mortgage upon credit. We do not think it was competent for him to do this. The mortgage contained a power of sale which expressly provided the terms upon which the sale was to be made, and it did not authorize a sale upon credit. This mortgage was the act of both partners. When the mortgagee took possession under his mortgage, the mortgaged property ceased to be stock in trade. We think the mortgagee was bound, in exercising the power of sale, to pursue the terms of it, and that neither partner could release him from his obligation under the power without the concurrence of the other; and therefore, if he sold upon credit by permission of one copartner only, he gave *350 credit on his own risk, and is not entitled to charge the mortgagors with the expenses which resulted from giving it.

William B. Beach, for plaintiff Arnold. Benjamin M. Bosworth, for defendant.

Exceptions overruled.

Cite This Page — Counsel Stack

Bluebook (online)

5 A. 503, 15 R.I. 348, 1886 R.I. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-greene-ri-1886.

Opinion

Related

Cite This Page — Counsel Stack