#### MARTINE et al. v. ROBINSON et al.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Partnership—Assignment—Execution by One Partner. ■

Where an assignment for the benefit of creditors is executed by one partner, the consent of his copartner is sufficiently shown by evidence that the copartner told him to make the assignment, and said that no written authority was necessary.

Appeal from judgment on report of referee.

Action by Homer J. Martine and Godfrey R. Martine against William H. Robinson and Lyman Jenkins as assignee for benefit of *1057creditors of the New York & Oriental Tea Company, and of William H. Robinson individually, to set aside the assignment. The complaint was dismissed as to defendant Jenkins, and an injunction against defendants was dissolved, and plaintiffs appeal. Affirmed.

Argued before MAY HAM, P. J., and PUTNAM and HERRICK, JJ.

T. D. Trumbull, Jr., for appellants.

Cameron & McArthur (T. W. McArthur, of counsel), for respondents.

PUTNAM, J.

Plaintiffs, claiming to have been copartners with one William H. Robinson in a business carried on at Glens Falls, N. Y., under the firm name of the New York & Oriental Tea Company, brought this action to set aside a general assignment for the benefit of creditors executed by said Robinson in the name of said firm; mailing said Robinson and the assignee, Lyman Jenkins, parties defendant. The defendant Jenkins, who alone answered, denied that the plaintiff Homer J. Martine was a member of said firm, and alleged that the assignment was executed by Robinson with the consent of the other plaintiff. The trial was before a referee, who reported in favor of the defendants, and from the judgment entered on his report the plaintiffs appeal.

The questions in the case were of fact, and a careful examination of the testimony has satisfied us that the learned referee did not err in his conclusions. The evidence was such that he could properly find that the business of the New York & Oriental Tea Company, from 1887 to the time of the assignment, was carried on by the plaintiff Godfrey and Robinson as equal copartners, and that the plaintiff Homer was not a member of said firm. It is true that there is evidence indicating that on April 12, 1887, Homer owned the stock of goods, one-half of which was then sold to Robinson, or some interest therein. But such a sale did not make Robinson and Homer co-partners. The referee doubtless relied upon the testimony of Robinson that Godfrey said that he was the owner of the stock of goods in question, and further said “he would sell one-half of the business if the references that I [Robinson] gave him were satisfactory, and that I [Robinson] should be general manager of the business, and we should divide the profits equally; we should be partners, and share and share alike.” That he (Robinson) did not know that Homer had any interest in the goods. The fact that Godfrey sold an undivided one-half of Homer’s goods to Robinson would not make the latter copartners, unless with the consent of both parties. The testimony of Robinson, above referred to, is contradicted by Godfrey. It was for the referee to determine between the two witnesses. He believed the statement of Robinson, and we are unable to say that he erred in so doing. Without attempting to discuss the evidence, we think all the facts and circumstances of the case tend to support the testimony of Robinson, and to show that Homer was not a member of the copartnership. The contract was made between Godfrey and Robinson while Homer was in Florida. It appears that Godfrey was authorized to manage the business for Homer. According to *1058the testimony of Godfrey, when the sale was made to Eobinson, in the spring of 1887, the name of Homer was not mentioned. It was not stated that he was interested in the business. Nor does it appear by the evidence produced by plaintiffs that Eobinson was in any manner informed that he (Homer) owned the goods purchased, or any interest therein. It is difficult to see, therefore, how, on the testimony produced by the plaintiffs, the claim that there was a contract of copartnership between Homer and Eobinson can be sustained. Eobinson could not be made a partner with Homer without his consent or knowledge. The plaintiffs fail to satisfactorily show any consent on the part of Eobinson to enter into any relationship with Homer. Hence, the finding of the referee was justified, not only by the evidence of Eobinson, but also by that produced by plaintiffs. If Homer was, as he claimed, the owner of the goods, one-half of which was sold to Eobinson April 26, 1867, and the New York & Oriental Tea Company, without due authority, appropriated and used said goods in its business, it may be that Homer has a claim against said company or its members, or one of them, on which he could maintain an action, but not this action. Hence, we find no error in the conclusion of the referee that Homer was unnecessarily made a party plaintiff.

It has long been settled that one member of a copartnership can, with the oral or written consent of the other, make a general assignment for the benefit of creditors. Welles v. March, 30 N. Y. 344; Klumpp v. Gardner, 114 N. Y. 153, 21 N. E, 99; Hooper.v. Baillie, . 118 N. Y. 413, 23 N. E. 569. We have already held, in this case, that the assignment in question was, on its face, valid, and hence tnat the burden was'on plaintiffs to prove its invalidity. Sherman v. Jenkins (Sup.) 24 N. Y. Supp. 186. See, also, Hooper v. Baillie, supra. The question then arises whether plaintiff succeeded, on the trial, in showing that the assignment in question was executed without the assent of the plaintiff Godfrey. The referee found “that the said instrument was made, executed, and delivered by the defendant William H. Eobinson in the name of the said company, and the members thereof, by and with the consent, and upon the authority, of the plaintiff Godfrey G. Martine.” The case of Klumpp v. Gardner, supra, holds that it is not necessary to show an express assent to the execution of a general assignment by a partner not executing it. It is sufficient if an assent may be inferred from the acts or declarations of such party. In the case cited an assent was inferred from the language of a letter written by the one not executing the assignment, in which he says, “Should you have to make an assignment, make Mrs. A. a preferred creditor,” etc. In this case, Eobinson testified as follows, viz.:

“I asked Mm if it wouldn’t be better to make an assignment than it would be to let the sheriff come in, and close up the business, and the doctor said he didn’t know but what it would; and, from that, I asked him if he couldn’t raise a part of the money, and he said that he couldn’t. And I told him that, if I would make an assignment, for him to give me a paper to make an assignment, and he said I didn’t require any. He said I could go on, and sell out the whole business, and not ask anybody. And I told him I never heard of any two men being in partnership, and one making an assignment without *1059a paper from the other; and he said I didn’t need a paper, that I was general manager, done all the business, and signed all the checks, and then he said that he wasn’t a partner. I think that is about all the conversation there was. This conversation took place before the assignment was made. It wasn’t but two or three days before. It was right near the time.”

This testimony, although contradicted by Godfrey R. Martine, was believed by the referee, and we cannot say that he erred in his conclusion. It appears, therefore, that while Robinson and Godfrey were speaking of a claim they were unable to meet, and of an assignment, the latter said that the former did not require any paper to make an assignment. He could go on, and sell out the whole business, and not ask anybody. This shows an assent to the assignment in question on the part of the partner not executing it, as clearly as was shown in Klumpp v. Gardner, supra. We therefore conclude that the consent of Godfrey to the assignment was sufficiently shown. We also think it sufficiently appears that the New York & Oriental Tea Company was insolvent at the time the assignment was executed.

As, in the brief of the learned counsel for the appellants, no mention is made of the exceptions taken upon the trial to the rulings of the referee in receiving or excluding testimony, we do not deem it necessary to discuss them. The judgment should be affirmed, with costs. All concur.