Vandyke v. Carleton

61 N.H. 574

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1881
• Status: Published

Opinion

Stanley, J.

The plaintiff Peabody, and some person or persons represented by the word “Co.,” were joint owners of the property on which this tax was assessed. For their own convenience they had established a copartnership between themselves, and assumed a style or appellation in which the name of Peabody stood first and that of the plaintiff second. In assessing the tax, the selectmen placed the name of the plaintiff first and that of Peabody second, and those names appear in the same order in the list delivered to the collector with his warrant. For this reason it is contended that the warrant gave the collector no authority to enforce payment of the tax against the owners of the property; that the case stands the same as though the collector had taken the property of A to satisfy a tax set down in his list to B.

This view cannot be sustained. The individual names of the owners of the property were correctly given, so far as they appeared in the name assumed by the firm. But for the partnership, the order in which the names of the joint owners were set down in the list was of no consequence. But it is not necessary to inquire whether the existence of the partnership, having a firm name, made any difference in this respect, because the case shows that no one was in fact misled or injured by the change which the selectmen made in the name. The plaintiff, and his associates, knew they had taxable property in Stewartstown; and they also knew that this was the tax assessed upon it just as well as they -would have known had the name of Peabody stood before that of VanDyke in the firm name on the list, instead of after. Besides, the list itself made it plain that the property was taxed to its owners. Unde]1 the circumstances shown, we think the warrant must be held to be a good justification to the defendant to collect the tax from the owners of the property, although they held it as a partnership under the name of Peabody, VanDyke & Co.

The tax was collected by a distraint of the individual property of the plaintiff, who was a member of the firm, and one of the joint owners of the property upon which it was assessed; and it is claimed that this could not lawfully be done. A tax lawfully assessed is, in its nature and substance, a public debt established by judgment of law, and no reason is seen why such a debt resting upon a partnership should not bind the individual members of the firm in the same way, and to the same extent at least, as one created by contract.

Judgment for the defendant.

Doe, C. J., die not sit: the others concurred.