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it, notice of the dissolution of a partnership Wyo. 89, 50 Pac. 194; Newark Plank Road is necessary to terminate the agency of either Co. v. Elmer, 9 N. J. Eq. 754, 785; Black partner, and that the burden of proof as to 5. Lamb, 12 N. J. Eq. 108; Dowie v. notice rested upon the partner claiming that Driscoll, 203 Ill. 480, 68 N. E. 56; Marshall it had been given. The particular objection v. Croom, 60 Ala. 121; Apland v. Pott (S. D.) here urged against the instruction is that 92 N. W. 19; IIendrickson v. Wallace (Mont.) it was misleading upon the issues and evi- 75 Pac. 3.35; Peck v. Farnham (Colo. Sup.) dence for the reason that no question as to 49 Pac. 361; McClelland v. Bullis (Colo. Sup.) necessity of notice arose in the case. It 81 Pac. 771; Sweetser v. Dobbins, 65 Cal. is true that the evidence fails to disclose 529, 4 Pac. 5-10; Richardson Dry Goods Co. distinctly whether the claim of any creditor v. Ilockaday (Okl.) 73 Pac. 957; Howard v. represented by the trustee was incurred after Carter (Kan. Sup.) 80 Pac. 61; Bank v. Alter the date of the alleged dissolution. It does (Neb.) 85 N. W. 300; Fisher v. Zumwalt, 128 not necessarily follow, however, that the in- Cal. 493, 61 Pac. 82. The instructions in struction was so misleading as to require a that class of cases, however, may be imreversal of the judgment, since it was con- portant as showing the theory upon which fined as to necessity of notice to creditors the cause was decided, and if it appears dealing with the firm on the faith of the thereby that the conclusion of the trial court continuance of the partnership; and, in the was based upon a misconception of the law absence of proof that any creditor occupied as applied to the evidence or facts in the such a position, or if the proof established case, under the issues that may constitute the existence of the claims of all the cred- a sufficient ground for reversal, especially so itors prior to the date of the alleged dissolu- under our practice, where the case comes up tion, the instruction would not be applicable on error, and not on appeal for hearing de to any creditor in the case. In the latter novo. event, the instruction might be deemed im- If it should be conceded that the instrucproper because inapplicable to any evidence tion aforesaid was erroneous because misbefore the jury, and in that sense, perhaps, leading or inapplicable to the evidence or misleading, but whether constituting preju- | issues, we are not convinced that it discloses dicial error or not, might depend upon other the adoption by the court of an incorrect considerations in view of all the evidence and theory in its disposition of the case. the other instructions. But we do not think pears, we think, not only by the instruction it incumbent upon this court to decide what | aforesaid, but also by the act of the court in its effect on error would be if given upon refusing others requested by the plaintiff similar evidence in a case strictly at law. below, that the court fully understood the The case at bar is one of equitable cogni

extent and effect of the principle in regard zance, in which a jury was not demandable to notice of the dissolution of a partnership. as a matter of right, and though one was

An instruction was refused which stated in (alled to try the issues of fact, the judgment

substance that unless notice of the dissoluwas not entered pro forma upon the verdict, tion had been published or given the verdict but it recites that the court adopted the ver

should be for the plaintiff. It appeared by dict of the jury. Cases purely equitable in the evidence that public notice of the alleged character are triable by the court, subject dissolution had not been given, but the deto its power to order any issue to be tried fendants were permitted to introduce eviby a jury. Rev. St. 1899, § 3605. The ver- dence to the effect that some notice of the dict of a jury, in such a case, is merely dissolution had been given by Lellman, and advisory, and the court may adopt it or also by Hackman, to a few other persons, disregard it altogether, and proceed to make though no such notice was shown to have its own findings upon the evidence, and, been given to any one at Diamondville, or whether the verdict be simply adopted by any person having dealings with the firm the court, or separate findings be made, ei- at that place, excepting, perhaps, the witther harmonizing or conflicting with the ver- ness, Charles Stone, a banker at Evanston, dict, the ultimate conclusion will be that of with whom the firm did some business. Such the court, whose duty it is in all such cases notice as was shown to have been given apto determine the questions of fact as well pears to have occurred in ordinary conversaas of law. For these reasons it is generally | tions, rather than as the result of any purand, we think, correctly held that misdirec- pose to convey public information of the tion of the jury is not in itself ground for fact that the partners had agreed to dissolve. reversal in such cases; and that is the pre- Indeed, we think it appears that whatever vailing rule whether, as in some jurisdic- agreement the partners intended to make tions, the case is heard upon appeal de novo, as to dissolution was purposely kept from or, as in this state, upon error the same as the public, even if it be conceded that any in actions at law. Under either practice, the such agreement was in fact made or talked findings and conclusions of the court rather over by them. The matter of notice was than the verdict of the jury come before the brought into the evidence by the defendants appellate court for consideration and review. themselves for the purpose of corroborating Chosen Friends, etc., League v. Otterson, 7 the testimony of both Lellman and IIackman

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that they agreed to and did in fact dissolve partnership in January, 1901, and that thereupon, by virtue of their verbal agreement to that effect, the one took the Diamondville property and business, and the other the property and business at Evanston. We are not inclined to believe that even the jury were misled by the instruction into giving the absence of greater notice than that shown by the evidence more weight or effect than it was entitled to, but whether they may or may not have been misled, we are satisfied that the record fails to disclose any such misconception by the court itself in its adoption of the verdict of the jury.

It is contended that the evidence does not sustain the verdict or judgment. We are of the opinion that there is sufficient evidence to sustain both. It is not denied that the parties had been partners, and unless they dissolved in January, 1901, they continued in partnership, for there is no evidence or allegation of any other dissolution. Lellman and Hackman each testified that they verbally agreed at Evanston to dissolve some time in January, 1901, and there is some evidence to the effect that Lellman immediately thereafter said to some parties whom ne met on business other than that of the firm that he and Hackman had dissolved partnership, that he was to take the business at Diamondville and pay the debts of that business; and that afterwards he told Mr. Stone, the banker, about the dissolution; and there is some conflict as to whether similar information was given to Mr. Blyth, the holder of the prior mortgage upon the hotel furniture. It also appears, by the evidence of the county clerk, that Lellman made a statement to him in March, 1901, that he was then running the Diamondville business himself; that information having been given in connection with an application by him for a liquor license in his own name. Hackman testified that he told some traveling men that the firm had dissolved, though he admitted that he might have told Mr. Blyth that the dissolution was not made public. As before suggested no notice to persons at Diamondville, or those having business with them there, seems to have been given. By Flackman's testimony on cross-examination it appeared that the liquor license at Evanston for the period between March, 1901, and March, 1902, was issued in the firm name, though he explained that by saying that he had filed the application before the time of the alleged dissolution, and he did not think it made any difference, as the county had the money, so he made no effort to change the application to his own name.

Opposed to the evidence above outlined are the facts that it does not appear that any accounting was had or attempted to be had between the parties at the time when it was claimed they dissolved or afterwards; no conveyances of the partnership property were made from either of them to the other,

although some of the property at Diamondville was real estate. There was no aprarent change of possession, and it appears that Lellman continued to use the firm name in the business under his charge, and to enter the accounts in the firm ledger without any entry showing a different ownership of the business. On March 9, 1901, Lellman sent a telegram to Mr. Blyth at Evanston stating that if Hackman did not pay the balance on a note held by him, which it appears was a firm note for furniture in the hotel at Diamondville, he (Lellman) would send a check on the 15th, though he had testified that, by the agreement of dissolution, he was to pay the firm debts contracted in relation to the Diamondville business. Hackman admitted on the witness stand that goods ordered by him for the Evanston business after January, 1901, the date of the alleged dissolution, may have occasionally been shipped in the firm name, which he explained by saying in effect that he did not think it necessary to mention the dissolution to every traveling man who took his orders. The jury, and court might also have regarded Hackman's written consent to the inclusion of partnership property in the bankrupt proceedings as discrediting his testimony. It further appeared, without objection, that at a previous hearing before the referee in bankruptcy, at which hearing both the partners testified, it had been found and so adjudicated by the referee that the property in controversy belonged to the partnership.

Some other evidence has been referred to in the discussion of other points, and need not be here repeated. The court and jury had the witnesses before them, and were better qualified, therefore, than we can be to say what effect the positive testimony as to the dissolution should have in connection with the subsequent acts of the parties. Or it may be that the trial court regarded the verbal arrangement between the parties in January, 1901, as a mere executory agreement to dissolve and divide the property, not afterward consummated. Mere dissolution, without more, will have no effect upon the ownership of the firm property. Parsons on Part., 386. And though an agreement between partners for a dissolution and a separation of the joint property may have the effect of altering the equitable ownership, if made bona fide and not fraudulent as against creditors, the agreement to have that effect must be executed, and not executory merely. Lindley on Part., 336, 337; 1 Bates on Part., 8% 540, 541. It is evident that the conduct of the parties was not very consistent with the theory that they had dissolved partnership, or that the joint property had gone into the separate ownership of the individual partners. The court and jury having passed upon the evidence, we ob serve no reason for disturbing their con clusion upon it.

The judgment will therefore be affirmed. Affirmed.

SCOTT, J., and MATSON, District Judge, concur.


J., having announced his disqualification to sit in the cause, Hon. RODERICK N. MATSON, Judge of the First Judicial District, was called in to sit in his stead.

(15 Wyo. 181) THOMAS & SCHMITZ et al. F. SCHMITZ. (Supreme Court of Wyoming. Dec. 18, 1906.) 1. PARTNERSHIP_MORTGAGES_VALIDITY.

Under Rev. St. 1899, § 2808, providing that an instrument intended to operate as a chattel mortgage on partnership property must be executed by each member of the partnership, one partner cannot authorize the other to execute a mortgage or to sign it in the firm name so as to render it binding on the firm property

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, § 223.] 2. ASSIGNMENT FOR BENEFIT OF CREDITORSWIIO MAY ATTACK ASSIGNMENT.

In a suit by the chattel mortgagee of a partnership, to foreclose the mortgage and for the appointment of a receiver, where it appeared that the mortgage was invalid because not executed in compliance with Rev. St. $ 2808, requiring such a mortgage to be signed by all the partners, plaintiff could not attack the validity of a bill of sale conveying the partnership property in trust for creditors.

Error to District Court, Carbon County ; David H. Craig, Judge.

Action by Anna Schmitz against J. M. Thomas, Jr., and others. Judgment in favor of plaintiff, and defendants bring error. Remanded, with directions for modification.

Aaron Meyer and McMicken & Blydenburgh, for plaintiffs in error. N. R. Greenfield, for defendant in error.

Schmitz and J. M. Thomas, Jr., the former being the husband of the plaintiff below; and when the suit was commenced, and the receiver appointed, the property was in the possession of Harry Beale, as trustee for certain creditors of Thomas & Schmitz, under a trust agreement or bill of sale executed by that firm. The suit was brought against the firm in the partnership name, and Beale as trustee. The trial court found generally for the plaintiff below, and that she had a prior lien upon the fund aforesaid, as the proceeds of the property covered by the chattel mortgage referred to in her petition; and she was awarded a judgment against the firin of Thomas & Schmitz for the sum of $1,170, the amount found to be due upon the note, to secure which the alleged mortgage was given, together with $100 attorney's fee; and the custodian of the fund was ordered to surrender the same to the plaintiff, to be applied on the judgment, as the proceeds of the sale of the property covered by her mortgage. The defendants below bring the case here on error. Schmitz did not appear to the action in the court below. Separate answers were filed by Harry Beale, as trustee, and by J. M. Thomas, Jr., on his own behalf and on behalf of the firm, each answer denying any indebtedness from the firm to the plaintiff, and alleging the invalidity of the mortgage.

The face amount of the note and mortgage under which plaintiff claims is $3,950, but the note bears the following indorsement: "Credit by note given on or about Dec. 20th, 1903 for $2,930.” Mrs. Schmitz explained this by stating that she had agreed to advance money to assist the firm in paying its creditors, and had advanced $1,000 when the note was made; but on or about December 20th, not having furnished more, she gave the firm a note for $2,950, to cover the difference between the face of the note and the $1,000 advanced by her, which note was handed to and retained by Thomas. The note and mortgage were each dated November 6, 1903. The note appears to have been signed in the firm name of Thomas & Schmitz by J. H. Schmitz, and by J. M. Thomas, Jr., although the latter did not sign it until some time in December. The mortgage recites upon its face that it is given by Thomas & Schmitz by J. H. Schmitz a member of said firm, and it is signed "Thomas & Schmitz by J. H. Schmitz,” and J. H. Schmitz alone acknowledged its execution. Thomas did not sign the instrument in any manner, nor did he acknowledge it. Not having been signed or acknowledged by Thomas, a member of the partnership, it was charged in the separate answers and is here contended that the mortgage is void.

Section 2808, Rev. St. 1899, provides: "It shall be necessary for each and every member of a copartnership to execute and acknowledge a mortgage, bond, conveyance, or other instrument intended to operate as a chattel mortgage for and on behalf of the

POTTER, C. J. The defendant in error, Anna Schmitz, brought this action in the district court for the foreclosure of a chattel mortgage, and incidentally prayed the appointment of a receiver to take charge of the property covered by the mortgage. An order was made appointing a receiver on the same day that the suit was brought. Before the trial of the cause the receiver, so appointed, had taken possession of, and sold, the goods and chattels described in the mortgage, and, pursuant to an order of the court, had delivered the net proceeds, amounting to $874.70, into the custody of the attorney for the plaintiff below to be held by him subject to the further order of the court, and thereupon the receiver had been discharged. At the trial, therefore, the controversy related to the rights of the respective parties to that fund, depending, of course, upon their rights respectively to the property from which it had been derived. The property originally belonged to Thomas & Schmitz, a partnership composed of J. H.

copartnership; Provided, that a chattel mortgage may be given to a copartnership in its copartnership name without enumerating the several members thereof."

Section 2810 provides: "A chattel mortgage given to a copartnership shall only be released, satisfied and discharged or assigned, transferred and set over, either by indorsement upon the original instrument or by an instrument executed and acknowledged by each and every member of the copartnership.”

This court had occasion to consider section 2808 above quoted in the case of Lellman et al. v. Mills, Trustee (decided at the present term) 87 Pac. 983, and it was held that by reason of that statute a chattel mortgage executed by one partner alone did not create a lien upon the partnership property. said in the opinion in that case, the clear effect of the statute is to deprive a partner of any power as such to alone act for the firm in executing a chattel mortgage. It restricts the general agency of the partner in that particular, and therefore takes away the only support of the rule prevailing in some jurisdictions that one partner may make a valid chattel mortgage of partnership property to secure a partnership debt without the concurrence or consent of his copartners. The statute, indeed, goes further than that, and in effect denies the power of a partner to execute such an instrument even with the consent of his copartner, unless the latter shall also by signing the same join in the execution thereof. It is contended that Thomas had authorized, or at least had afterwards ratified, the making of the mortgage by Schmitz, and we suppose that the district court so found. Previous authority or subsequent ratification was not, however, admitted by Thomas; but it is not necessary that we consider the evidence upon that subject, for clearly, we think, the statute eliminates such a question from the case. It was not competent for Thomas to authorize his partner to alone execute the mortgage, or to sign it in the firm name, so as to render it a binding instrument upon the firm property, without his signature, and therefore subsequent ratification or attempted ratification on his part would be equally unavailing. The statute does not provide that a chattel mortgage may be executed by one partner alone, or in the firm name, with the consent or authority of his copartner. If it did, then, without previous authority, such an act might be ratified. No doubt Thomas could afterwards have signed and acknowledged the instrument, and thus have joined in its execution in the method pointed out by statute. And we suppose that one partner may by a properly executed power of attorney authorize a copartner as well as another person to sign his name to such an instrument and acknowledge it for him. But neither of these things were done. The statute does not permit one partner to authorize a partnership chattel

mortgage to be executed in the firm name, without the signature of all the partners, nor to ratify a mortgage so executed as to make it a valid lien upon firm property. On the contrary, it expressly and plainly requires the signature of "each and every member" of the copartnership to an instrument intended to operate as a chattel mortgage "for and on behalf of the copartnership.” Something more than mere authority or consent is made necessary. Each partner is required to sign the mortgage, and it is not perceived that the statute can be construed as permitting the consent of a partner to the execution of such an instrument to be expressed in any other manner than by signing it. If it be said that Thomas authorized or consented to the giving of a firm mortgage to Mrs. Schmitz, the answer to that must be that such a mortgage was not executed, and the one upon which Mrs. Schmitz relies is not a firm mortgage, because not signed by each member of the firm as by law required; and, not being a firm mortgage in any sense, a subsequent ratification could not make it one.

It is further argued that the mortgage is good, at least between the parties. But the partnership, although named as a party and the firm name is signed, is not a party to the mortgage for the reasons already stated. If in any case, a chattel mortgage not signed by all the members of a partnership owning the property can be held good between the parties to it, that would only affect its validity as between the actual parties to the instrument as a lien upon the interest of the partners signing it; and that interest could only be ascertained after payment of the firm debts, including the claims of copartners. And, in this case, there is not only no showing of a remaining interest in Schmitz, the one who signed the mortgage, but it appears that. the firin debts are not paid, and that the fund in controversy is insufficient to pay them; and, indeed, the petition in the case alleges the firm to be hopelessly insolvent. It follows that the mortgage of the defendant in error was not a valid lien upon the partnership property, and therefore conferred upon her no lien upon or right to the fund derived from the sale of that property. And the court erred in awarding the fund to her.

The plaintiff in error, Beale, was in possession of the property, and was proceeding to dispose of the same, by virtue of a bill of sale signed by each of the partners as well as in the firm name, which conveyed the property to him in trust for the benefit of the firm creditors, and for the express purpose of selling the property, collecting the indebtedness due said firm, and paying the creditors pro rata. It appears that the fund is required for the purposes of that trust. It is argued that the conveyance to Beale is void because it is in effect an assignment for the benefit of creditors, and was not made in compliance with the laws of this state governing such assignments. Waiving any con

sideration of the effect of the federal bank- amended complaint, to which defendant inruptcy act upon the state insolvency laws, terposed a demurrer which was sustained, it is sufficient to say that the defendant in and judgment entered for costs. The appeal error is not in a position, in this case, to is from the judgment. question the validity of the transfer to Beale. The complaint alleges that defendant is a She is a mere creditor of the firm, without corporation organized and existing under the any lien upon its property in controversy ; laws of the state of Wisconsin, and doing a and this suit is vot one in the nature of a sawmill business in Kootenai county, this (reditors' bill, nor was it brought for the state, and that about one year prior to Aupurpose of annulling the trust conveyance, gust 24, 1904, plaintiff entered the employ or having the affairs of the firm adminis- of defendant as teamster to haul and skid tered by a receiver for the benefit of all the logs and timbers in the forests owned and creditors. For the reasons stated, the judg- used by defendant in connection with its ment must, in our opinion, be modified, by sawmill. It is then alleged: That defendant, vacating that portion of it which awards an in connection with its said sawmill, used a attorney fee of $100 to the plaintiff below, certain carrier operated for the purpose of which was provided for in the mortgage, but conveying refuse created in said sawmill to not in the note, and that part which requires a certain box midway of said carrier, when the custodian of the fund to pay the same said refuse was by said carrier dumped into to said plaintiff, and instead thereof the dump carts driven under said box, and haulentering of an order for the payment of the ed away by other employés of defendant. fund to the plaintiff in error, Harry Beale That sa... carrier consisted of a loop chain as trustee.

and stationary woodwork constructed so as The cause will, therefore, be remanded to convey said refuse from said sawmill to with directions to so modify the judgment. said box, and was about 200 feet long. That

said box had a driveway thereunder and BEARD and SCOTT, JJ., concur.

therethrough, with heavy ceiling and timbers

over said driveway, and a trapdoor in said (12 Idaho, 678)

ceiling and timbers through which said refCRAWFORD V. BOXNERS FERRY use was dumped into dump carts below. LUMBER CO.

The dump carts used by defendant for haul(Supreme Court of Idaho. Nov. 27, 1906.)

ing said refuse are described as large, heavy, 1. MASTER AND SERVANT—INJURY TO SERVANT

two-horse, four-wheeled carts, with a heavy -COMPLAINT-DEMURRER,

bed or box arranged to balance on an axle to, Where a complaint alleges the injury to which it was held by an iron bolt. That said plaintiff in plain and concise language, and that

bed or box was held in place by means of a such injury resulted from the carelessness and negligence of defendant in the construction and

hook thereto, which fastened into the tongue operation of its sawmill and appliances thereto, or forepart of the running gear of the said and that plaintiff was in no way guilty of dump cart. That at the rear end of said bed contributory negligence, and used ordinary prudence and care in the performance of the labor

or box there was a heavy tailboard or endassigned to him, and in the performance of

gate fastened by means of hinges, bolts, or which he was injured, it is not subject to de- swivels in such manner that said tailboard murrer.

or endgate could be swung or turned over 2. SAME — CONTRIBUTORY NEGLIGENCE-BUR

upon and across said bed or box when said DEN OF Proor. When the plaintiff has sufficiently plead

carts were being loaded. That the said the carelessness and negligence in the construc- bolts, hinges, or swivels extended higher tion and operation of defendant's sawmi nd

than the surface of said bed or box, and that, other machinery connected therewith, and that,

when said tailboard was swung over and through no fault of his, he was injured and damaged by defendant whilst in its employ and across said bed or box, it was about on a line performing the work prescribed for him by his with the top parts of said bolts, hinges, or employer, and demurrer to such complaint should

swivels. be overruled, and defendant permitted to answer setting up its defense, the burden of proof is

The fifth allegation of the complaint is upon defendant to show that plaintiff was guilty "that on the day last aforesaid, and while of contributory negligence.

plaintiff was in the performance of his said [Ed. Note.For cases in point, see Cent. Dig. duties in hauling and skidding logs and vol. 34, Master and Servant, $ 908.]

timbers in the forests of defendant pursuant (Syllabus by the Court.)

to said employment, the said defendant Appeal from District Court, Kootenai directed and required plaintiff to suspend County ; Ralph T. Morgan, Judge.

said work and to haul certain laths from the Action by John Ira Crawford against the south end of said sawmill to a dry yard Bonners Ferry Lumber Company. Judg. northeast of said sawmill, a distance of about ment for defendant on demurrer, and plain- 500 feet, with one of said dump carts; that tiff appeals. Reversed and remanded. thereupon plaintiff objected to performing

said last-mentioned services, and informed R. E. McFarland, for appellant. E. C. Mc

defendant that he was ignorant of, and did Donald and John P. Gray, for respondent.

not understand said work, or dump carts, or STOCKSLAGER, C. J. This appeal is the use thereof, whereupon defendant further from Kootenai county. Plaintiff filed his directed and required plaintiff to perform

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