Preston v. Fitch

19 N.Y.S. 849, 46 N.Y. St. Rep. 588, 64 Hun 636

Opinion

Putnam, J.

The exhaustive opinion delivered at special term renders it unnecessary for me to do more than make a few suggestions in regard to this case. I concur in the result reached by the court below, but with some doubts as to the finding that the partnership between William B. and Simeon Fitch continued as to the Ezra Fitch debt after the execution of the agreement of August 25, 1877, although in all other respects dissolved. That agreement provided that the parties “mutually agree to discontinue said co-partnership existing between them as aforesaid from the day of the execution of these presents, and the said parties * * * agree to continue to hold as tenants in common the debt, claim, or demand, amounting to about the sum of twenty-five thousand dollars, known as the‘Ezra Fitch Debt;’ * * * each of the parties hereto to have and own an undivided one-half interest therein.” I incline to the opinion that the language of this agreement between the parties should be taken literally. The agreement does not provide that the partnership shall be dissolved as to a portion of the assets of the firm, and continue as to the residue. It seems an unlimited and entire dissolution of the firm. It provides that the Ezra Fitch debt shall thereafter be owned by the parties as tenants in common. There is a plain distinction between owning personal property as tenant in common or as partner. If it had been the intent to continue the copartnership as to the debt in question, it would have been quite easy to have inserted in the agreement in the clause dissolving the partnership the words, “ except as to the Ezra Fitch debt, ” or that the parties should continue to own this debt as partners. I am inclined to think, therefore, that by the terms of the contract of August 25, 1877, the copartnership between the parties ceased as to this Ezra Fitch debt, as well as to all other partnership property. Hence, on the death of Simeon Fitch, which occurred a few days after and before the disbursements, for which this action was brought, were made, the title to an undivided one half of the Ezra Fitch claim vested in the personal representatives of Simeon. They should have been made parties plaintiff in the Best action. Cook v. Keneda, 29 Barb. 121.

The representatives of Simeon Fitch and William B. Fitch being tenants in common as to the Ezra Fitch debt, plaintiff or his assignor could not charge defendants for expenses and disbursements of the action and other expenses set out in the complaint, incurred without the knowledge, consent, privity, or procurement of defendants. If while Simeon lived there was any presumed agency on the part of William B. to continue the action, and make the expenditures mentioned in the complaint, Simeon having died, such presumed agency was terminated by his death. In the cases cited by the appellant I find no authority holding that a tenant in common can enforce contribution for such disbursements as were made by William B. Fitch, and for which plaintiff claims here; they being made without the knowledge, request, or privity of the cotenant. I also think the judgment rendered in the action to foreclose the Best mortgage does not estop the defendants from asserting that the copartnership between William B. and Simeon Fitch as to the Ezra Fitch debt ceased before the death of Simeon. It is true that the action was carried on by William B. Fitch as survivor, and it was determined in such action that he was the survivor. But the defendants were not parties, and hence are not bound by the judgment. If in fact the partnership ended on the execution of the agreement, August 25, 1877, as above suggested, the defendants cannot in any way be bound by the proceedings in the action after the death of Simeon Fitch. They could only be made liable by the result of the action of parties to it. Of course, if the partnership in fact continued as to the Ezra Fitch claim, William B., as survivor, could continue the action, and the judgment therein would be res adjudicata. But if my impression, as above stated, is correct, I am unable to see how a judgment in an action in which they never had an opportunity to appear could be binding on defendants. For these reasons, and without considering those advanced at special term, I think there should be an affirmance of the judgment, with costs.

Herrick, J. One of the members of the court being disqualified, I concur in the result of the opinion of Justice Putnam, in order that there may be a decision of the case, which there would not be if I failed to assent.