B. F. Avery & Son v. Myers, Houseman & Co.

60 Miss. 367

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

It has long been settled law (certainly since the case of Wightman v. Townroe, 1 Mau. & Sel. 413 (1813), that where the personal representative of a deceased partner embarks or continues the assets of the decedent in the firm business with the surviving partners, under an agreement that it shall be carried on for the benefit either of himself or for that of the heirs and distributees of the decedent, he does not thereby impose any liability upon the estate or its beneficiaries, but does thereby become personally liable for all debts thereafter contracted in the course of the business. Insurance Company v. Ligon, 59 Miss. 305; Brassfield v. French, 59 Miss. 632.

It is sought under this principle to hold the appellee Ligón, executor of SimonMyers, deceased, bound for debts contracted by the firm of Myers, Houseman & Co. after the death of the senior member of that firm.

The facts fail to show any agreement between the executor and the surviving partners that the business should go on for the benefit of himself or for that of the estate, but on the contrary expressly negative the existence of any such agreement; though it is true that more than two years intervened between the death of Meyers and the failure and insolvency of the firm, and that during this time there was no withdrawal of the assets or interests of Meyers from the business. It is shown, however, that shortly after his death the executor called on the surviving partners, who had bylaw the right to wind up the concern, and demanded that this should be done without delay, and that his demands to this effect were thereafter repeated and urgent. Compliance with them was postponed by the survivors from time to time under a claim that the firm was under heavy obligations and contracts to sundry persons, and that a failure to carry out these engagements would result in ruinous loss to all concerned. The executor took no part in the conduct of the business directly or indirectly, and seldom went about the business house. He gave no advice, orders, or assistance, nor did he, or the estate represented by him, derive any benefit or draw any profits from it. He dealt with it as a stranger buying goods both for himself and for the estate, and always paying full prices in cash. In no manner did he hold himself out to the world, nor was he regarded by the surviving partners, as a co-partner with them either individually or in his representative capacity. Under these circumstances he did not become personally bound for its contracts. The surviving partners were entitled by law to wind up the partnership, and this was a right of which he could deprive them only by showing that they were improperly discharging it. If they delayed unnecessarily in doing so he might have had them removed and a receiver appointed, and if the estate of his testator has sustained loss by his non-action in this regard he may have made himself liable to the heirs and legatees, but has not given those dealing with the firm a right of action against him.

This case is somewhat connected in its facts with the case of Citizen’s Insurance Company v. Ligon, 59 Miss. 305, though the plaintiffs in the two cases are different.

Decree affirmed.