Green v. Ross

24 Ga. 613

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

McDonald, J.,

delivering the opinion.

This cause comes to this Court on exceptions to the decision of the Court below, making the award of the arbitrator the judgment of the Court. The causes pending between the several parties in this voluminous record were referred by the order of Court with the consent of parties, to the arbitrament and award of the Hon. Absalom H. Chappell. He was to pass on all the questions of law and fact, and also on all the equities involved. The right of any party interested to appeal to the Supreme Court from the decision of the arbitrator on any question of law or equity was reserved. No right of appeal from his finding of the facts was reserved. The majority of the Court is of opinion that the arbitrator, having found the facts as he did, pronounced correctly the law and equity of the causes arising on those facts as found and that the most of the errors, if not every error assigned in the special assignments, when examined, will be found to be based on the finding of the facts.

It follows, as a matter of course, that if the errors are assigned on the finding of the facts alone, there is nothing that this Court can consider, and that the judgment must be affirmed.

I doubted in regard to two matters determined by the arbitrator, and I am not satisfied that he determined correctly in regard to them. The first is in regard to the State printing. I think there is a difference between a contract with the State for the public printing, and a contract for the execution of the job after it is engaged. A member of a printing firm may be chosen State printer. The acceptance-of the appointment makes him responsible for the public printing. It is an individual engagement. Other members of the firm are not committed or bound by the election, and may or may not refuse, if an opportunity be afforded them, to unite with the elected partner in the contract. He may nevertheless engage his own firm to do the work,paying them, for the work and pocketing the profit or loss himself. Ray, as the State printer, may have employed any other printer or printing firm to execute the job. If he employed his own firm, they became partners with him in the job, and whatever profit they may have made they should share with him ; but if there was a difference between the price paid for executing the job and the price paid the State printer, the latter was entitled to that if more, and bound to pay if less. According to the evidence in this case, the arbitrator might have found that Mr.- Ross was partner in the contract; or that he was partner in the job only. My own opinion is» that the preponderance of the evidence is in favor of the latter proposition. Mr. Ross says in his answer that Ray took and received him as an equal partner in the public printing, at the time the partnership of Ray & Ross was formed, and that was a part of the consideration which induced him to enter into the partnership. He does not say that he was taken as an equal partner in the contract. In fact, he does not seem to have known what the contract was, but he does seem to ha.ve heard that Ray had other partners in that, who were to share, in some way, in the profits of the business of State printing, but does not know it to be true; that S. T. Chapman claimed an equal interest in the profits, that the sum of five hundred dollars was paid him; that he paid Edward J. Hardin, by order of Ray, fifty dollars, and a thousand dollars more were paid out. Ray was to have the work done, and the profits were to be divided among the partners to the contract. The profits could only be ascertained by deducting from the contract price with the State, the price for which Ray undertook, with his partners, to execute the job The job was executed by the same hands, no doubt, who executed other jobs for Ray Si Ross, and if Ross was a partner, he was entitled to his share of the profits made by the job under Ray’s contract with his co-partners in the contract, The testimony of Dr. Collins accords well with this view of the matter. He was called on by Ross to stand Ray’s security as Stateprinler, and when asked why he did not call on his own brothers to stand Ray’s security, he replied, to the effect, that it was Ray’s business, though he had an interest in it. Perfectly consistent with the fact that Ray’s was the contract with the State and entitled to the profits of that contract ; while Ray & Ross were to execute the job for Ray.

The arbitrator proceeded to decree precisely as though he had found that Ross was interested in the contract, and not in the job only. If that was his finding, his decree is in accordance with my opinion of the law. That was certainly the interpretation of the majority of the Court of the finding. The language of the arbitrator is, “that this job of State printing was embraced in the partnership as much as any other job which had been secured or engaged by Ray before the partnership, but were not commenced or executed until afterwards.” According to the words of the award, Ross was interested in the job; according to the decree, to make it right, he must have been, in the opinion of the arbitrator, interested in the contract also. The majority of the Court may have construed the finding of the arbitrator correctly, that Ross was interested in that contract; but if that finding, being of a fact, be wrong, this Court, I conclude, has no power to correct it.

The other point on which I had some difficulty grows out of a decision of this Court on the effect of the lien of a judgment against one of the partners individually, on the interest of that partner in the property of the firm of which he is a member. If it be a lien on that interest, so as to entitle the purchaser of it, when sold, to take it divested of a lien for the firm debts, not reduced to judgment, (beingjudgments of older date.) then it is a prior legal lien, and according to the rules of a Court of Chancery, if there be funds in its hands, on which there is a legal lien over-riding equitable liens on the same fund, the legal Jien must prevail. If it be a correct construction of our statute in respect to the lien of judgments on the property of the defendant,'that a judgment against an individual member of the firm binds the partnership property of that member of the firm, to the exclusion of the equitable lien of partnership creditors, then the oldest legal lien on Ray’s property ought to have prevailed.

I think that the decree of the arbitrator is in conformity with the old rule; but I do not see how it can stand consistently with the ruling of this Court to which I have adverted, and which I am not calling in question.

Judgment affirmed.