Johnson v. Hersey

73 Me. 291, 1882 Me. LEXIS 39

• Court: Supreme Judicial Court of Maine
• Decided: March 30, 1882
• Status: Published

Opinion

Peters, J.

In this case, as to the other trustees, it was held, that, "where one partner, without the knowledge or consent of his copartner, pays his own note to a private creditor out of 'the funds of the insolvent firm, such creditor knowing that the money belonged to the firm, the funds so received will be regarded as .held by the private creditor in trust for the benefit of the firm, . and may be attached in his hands upon a trustee process instituted ;against the firm by one of its creditors.” Johnson v. Hersey, 70 Maine, 74; Blodgett v. Sleeper, 67 Maine, 499, is in accord with Johnson v. Hersey.

We perceive no difference between the facts presented then •and those presented' now which will enable the present parties to .avoid the application of the principle established by the former decision. There, the single partner’s note did not have the copartner’s name upon it. Here, it has the copartner’s name upon it as a surety. This does not, however, make the note a partnership note, the funds given for it having been a loan to the single partner and not to the firm. Ex parte First National Bank, 70 Maine, 369, and cases there cited by the counsel and court.

Here, the money was not collected by the private creditor himself, but his note was collected by an agent, who received therefor drafts drawn in the partnership name, and forwarded the proceeds thereof to his principal. This fact cannot change the principal’s reponsibility. The private creditor got his payment of the debt out of a fund which belonged to partnership creditor’s and not to him.

Trustees charged.

Appleton, C. J., Barrows, Virgin, Libbey and Symonds, JJ., concurred.