Carrie v. Cloverdale Banking & Commercial Co.

De Haven, J. This is an action brought by the plaintiff, as assignee in insolvency of the firm of Scott & Staley, to recover the value of certain sheep alleged in the first count of the complaint to have been sold to defendant by said firm in violation of section 55 of the Insolvent Act of this state. The second count charges the sale of said sheep to have been made by only one of the partners, Staley; and that as the sheep constituted the entire stock owned by the partnership, the sale made it impossible thereafter to carry on the ordinary business of said firm; and that the business of said firm had not been abandoned to the partner making this sale, nor was the surviving partner incapable of acting; and further alleges a conversion of the sheep by the defendant. This second cause of action was not in the original complaint, but was added by way of amendment during the trial. The court, in its finding of facts, negatived the first cause of action stated in the complaint, and found the above facts alleged in the second count. It also found the full value of the sheep to be $5,157, and gave judgment against the defendant for that sum.

1. The court did not err in permitting the complaint to be amended by adding thereto the second cause of action, and thus to attack the contract under which defendant claims, upon the grounds therein alleged as well as upon those stated in the original complaint. In both' [87]the original and amended complaint the plaintiff bases his right to maintain the action upon the alleged invalidity of the said contract of sale, and it was certainly proper for the court to allow the complaint to be so amended as to state all of the grounds upon which it is claimed that such contract is invalid.'

2. The fact that Scott was temporarily absent from the state at the time of the sale did not render him incapable of acting, within the meaning of section 2430 of the Civil Code, nor of itself constitute an abandonment of the business of the firm to his copartner; and the sale of the sheep made to defendant by Staley was therefore in excess of his authority as a member of the firm of Scott & Staley (Civ. Code, sec. 2430), and did not pass Scott’s interest in the sheep.

3. The court below, in rendering judgment in favor of the plaintiff for the full value of the sheep, proceeded upon the theory that this sale was absolutely void, and that the defendant acquired no rights thereunder which it can assert against the plaintiff. We cannot concur in this view. The sale, though ineffectual to pass the title of Scott, was binding upon Staley, and transferred his interest in the sheep, and neither he nor the firm of Scott & Staley, represented by plaintiff, can maintain an action for their conversion upon the ground that Staley had exceeded his authority in making the sale. This is the. rule which is laid down by the best-considered cases in passing upon the rights of a copartnership growing out of an unauthorized sale of partnership property by one of its members in payment of his private indebtedness. (Homer v. Wood, 11 Cush. 68; Farley v. Lovell, 103 Mass. 387; Craig v. Hulschizer, 34 N. J. L. 364.) Such an act of a partner is neither more nor less in excess of his authority as such than was the sale by Staley in this instance, and we see no reason why the remedy for the unauthorized act should not in this as well as in that class of cases be confined to the non-consenting