Fox v. Heath

16 Abb. Pr. 163

Opinion

By the Court.

*—Hilton, J.

When this case was before us on appeal from the order made at special term, appointing a receiver of the partnership property of the defendants Heath and Wynkoops, assigned by them to the defendant Rollins, we held that the assignment in question was void as to the plaintiff, who is a creditor of the' partnership, because it appeared that Robert D. Wynkoop, Jr., one of the partners joining in the assignment, was at the time of making it, an infant under the age of twenty-one years. At the trial, and for the purpose of avoiding this difficulty, the defendants offered to prove that Robert D. Wynkoop, Jr., never had any interest in the property so assigned for the benefit of the creditors of the firm of Heath, Wynkoop & Co.; that he was in effect but a nominal partner, .who contributed nothing to the capital of the firm, and was to receive but a nominal sum per annum for his services.

I think this evidence was erroneously rejected, as its effect, if admitted, was to establish that the defendant Robert D. Wynkoop, Jr., upon hereafter arriving at maturity would possess no right to devest the defendant Rollins of the interest which passed to him in the property transferred by the assignment.

But it is claimed that the defendants having stated in the assignment, that Robert D. Wynkoop, Jr., was a partner in the firm, they must be now held estopped from denying jj. It seems to me, however, that the rule of estoppel has no applicability to a case like the present. Estoppel by deed only affects parties and privies, and they alone can take advantage of it. It only operates in those cases where a particular fact recited in a contract appears to have formed the inducement for making it, and then for the purpose of avoiding circuity of action, the party asserting the fact will be estopped from denying its existence. (Sparrow a. Kingman, 1 N. Y., 242 ; and cases cited.)

Here the plaintiff is neither party or privy to the assignment, nor was the statement in it as to who composed the firm of Heath, "Wynkoop & Co., material in any sense, either as an inducement or otherwise.

Besides, another element of an estoppel is, that it must be reciprocal. Both parties must be bound by the recital, or neither is concluded by it. I suppose it would not be contended that the assignee, Rollins, would be bound by such .general words as is contained in the assignment respecting who composed the firm, and if he, claiming under the instrument, would not be concluded, surely the plaintiff claiming in hostility to it .should not.

A remaining objection urged against the validity of this assignment is, that it is void because the assignors have conveyed all their property, individual as well as joint, for the payment first of the partnership debts, and any residue remaining to be applied to the payment of their individual creditors. It is urged that this is a fraud upon the individual creditors, and such a fraud as renders the instrument invalid as to all. I am unable to perceive any force in this objection, coming as it does from a partnership creditor who is benefited by this increase of the fund out of which he is to be paid. Á. party to have any standing in court, must first show himself to be injured by the acts of those of whom he complains; here, if this objection had any force, it would have the effect of reversing the rule stated, as it would permit a party to come into court, and complain of another for conferring upon him a benefit.

The judgment should be reversed, and new trial ordered, with costs to abide the event.

Present, Daly, F. J., Hilton and Beady, JJ