The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-15
q INTELLIGENCE.



Supreme Court-Genera Twrn.
Mitchell, Morris and csrks, Justice.
kLLEGALrrY OF THK PKKrKRkScx TO onxDrrons-
IMPORTANT TO PAnrTKRs.
John Ererson 10. @. GeArnaa ana yoAs o. Beer.
soR.-MIrcHrL, 1.-The d~efendsnt, Gehrnas. msvss
ut special term to set aside . judgment against hin and
]. @. Everssn, for irregularty, and also a. entered by
collision between the two Eversons, sns In frsud %
Gehrman's rights. The motion was denied, and The de-
PENDANT Everson allowed to amend an offer 10 confess
Judgment, so that IL should be in TIE joint names Of the
firm, instead Of being in his name alone. The defend
ant Gehrman appeals.
1t may fairly be inferred, from the shidavits In this
case, that Gehrman became indebted 10 the plaintiff In
the year 1859, In q sum exceeding three or four thousand
dollars; that on the 1st day OF January, 1854, Gehrman
and the plaintiffs son entered into partnership, and the
debt remaining unpaid, the plaintiff agreed with the
defendants, in March, 1854, that they shsali give him
gave to the father sos7 As, in bill. due to the Arm,
agreement, made by the Arm IN good faith,
and with the concurrence Of both OF its members, would
81 bind a. the s.t srm; the loss sS o. the plaintiff .oasid IN releasing par.
august the plaintiff applied to the detendanta to pay
the note Of 81 500, or to secure 1t. They said they could
not. He asked for q judgment, but Gehrmsn Refused to
give one; and he swears that Gehrman said that IL any
one sued him, he would sell his property and dispose Of
1t SO that such person could not collect the Judgment,
At the same time the son was desirous that judgment
should be confessed. Thus the plaintiff and his SON, the
partner Of Gehrman, each knew that Gehrman was de-.
termined that the plaintiff should not have any pre-
ference by . judgment against the firm. With this
their plans and carried them out; and the question Is.
whether they should be aided by the Court to make
e~nestuai . scheme in which they colluded together to
gain an advantage to the father over otke creditors of
the firm, against the known and express wishes OF
Gehrman, the other member of the firm.
The facts clearly show that the action against the de-
PENDANTS was commenced and carried on by, and all It's
parts arranged by concert between the plaintiff and his
Ssr Of { the ss SON, and with 3 the i IaS% siSs@ that b h. p, va.
s Sppo.ssi .as 1 ssY T. sa'n and ''S %siIs tn rh' a. P.sins1a,;
counsel e.i 1sa'i It %colia.ion to d.irsud 9 Gshr 1sas' out Of
his rights, the plaintiffs counsel insisted that it wass
Tho plaintiffs attorneys lived in Madison county, not
far from the residence Of the plaintiff; they condusted
all the proceedings and al the papers In the cause, in
papers on the part Of the defendant were in their hand
writing.
The summons was addressed to both defendants; It
had no date to 1t. The complaint was on the 81 800 note,
and was sworn to by the plaintiff on the 21st Of August,
a ~ of The ' ssrvcs ~ : ~ snmm : rs0 snd mang IN IN
the ~defendent Everson. At this time Gehrman wis in
his store, and could have been also served with tbs same
papers. And this must have been known to the plaintiff
serving then on him, =. that would have i%ru.trassd their
ID : paper stating that "the defendant, John 9. Eysrson,
hereby offers to let Judgment be entered against him in
confessed, in favor Of the plaintiff, for si,s4S 50, bssidss
COSTS he signed IN his own name only. On the same
Evsrson ! notice addressed 70 hun alone, tina. the plain.
till accepts your offer to let judgment be entered against
you, and made affidavit that he had served it on J. G.
Everson, one Of the defendants. On the same day, also,
y.C: Everson made affidavit that the defendants were
Justly indebted to the plaintiff in $1,000, aad interest
day, at % minutes after Q O'Clock in the morning, Judg.
msnt was entered against both defendants for $3.50 30
damages, and $40 SO costs; the papers above mentioned
forming part Of the judgment roll, and execution was
issued, and at about 10 o'clock on the same morning, was
levied on the stock in trade Of the firm Of the defend
ants.
Under these circumstances there could be no doubt
that al this was done BY father and son in collision with
each other, to give a preference to the father over the
other creditors Of the firm, and against the kno IN and
Fixed purpose Of Gehrman, one Of the members OF the
firm.
The Judge at special term allowed the Judgment and
, execution TO stand as security, and allowed the defendant
C. Everson to amend his offer to confess judgment, so
that 1T should appear to be made on behalf Of the frm,
Instead OF his own behalf alone. and also to sign the
In Egeerts vs.. Wood, q Paige, 5l7,l the complaint
without the Consent Of bis partner, vandenbnrsh' and
sought to set II aside on that account, but the snswe
denied this and alleged that It was made with tn
was; Gsee PIP. $40, 5ai.) The ohancsnoar expressly
in favor Of the validity of an assignment Of partnership
effects to q trustee, BY one partner against the known
cipate in the distribution Of partnership funds among
the credtors',-lp. $685.
Chancellor, repeating the language in 3Psige, characters.
ing such an assignment as a fraud on the right Of the
other partner to participate In the distribution Of the
most deliberate examination, that such an assignment is
both Illegal and inequitabls, and cannot be sustained ~
And he stated the principle on which an assignment by
one partner in payment Of a partnership debt rests, Is
THAT there 10 an implied authority for that purpose from
the partnership; the payment Of the company debts
being always q part o. the necessary bushes, OF the
limits Of such implied authority, his contracts are valid
and binding upon his copartner;,' that one member Of
the Arm may, therefore, without any exeress authority
from the other, discharge partnership debt, either by
payment Of the money or BY transfer TO the creditor OF
any other Of the partnership effects, although there may
other creditors Of the firm; but that II is no part Of the
ordinary business Of the copartnershipt TO appoint a trus-
tee Of ali the Partnership effects for the purpose OF SELL
ing and distributing the proceeds among the creditors in
equal proportions, and that no such authority as that
The tests are here furnished, which determine what
acts q partner may do he may do whatever the articles
Of partner.hip expressly auth 'rize him to do, and what
ever Ia within the lintts of an implied authority. IL il
within the limits Of the implied authority to do any.
thing that falls within the ordinary business Of the
credit, and to give the notes or promises OF the frm for
their payment, and to pay for them in money or any
piled authority to do any act which, IL it were proposed
TO insert II in the articles OF partnership, each would
aich Is not to continue the business. but TO sstinsai.h
IL nor for enc member Of the firm to appear in q suit
sgs,na the hsm, not 70 promote the wishes % his co
which he knew the other had declared he would not con-
Tess nor 20 collide with the Plaintiff, thus to defeat the
wishes Of the one whom he professed TO represent. Fit
we're proposed to any persons about ~ enter into q
partnership, whether they meant that either partner
might confess . Judgment 10 give q preferences against
the wishes Of the other, there could be but one answer
20 II, and that answer would show that no such
power can be implied A. arising out Of the inten.
ton Of the parties, although not expressed. No power
can be implied unless IL can be inferred that the
parties intsnded to grant II. Their acts may show
that intention M wen - their express words, but
in an implied authority the intent IL as essential an sie-
msnt a. words are In an express authority. The authority
Of partners 10 generally employed IN giving acknowledg.
mcrts Of Indebtedness, or Of payments ana promises or
obligations 10 pay, and In Sisposing Of the partnership
property. All these are within their oriinary business.
hey may also prosecute and defend suits. This IL on
the assumption that they are acting for asd under the