Cavert v. Alderman

BALDWIN, J. — Cavert, the appellant, was the administrator of this estate. In 1852 Alderman and Cavert were mercantile partners under the firm of Alderman & Co., and [74]had been for some time previously. In 1852 it seems that Cavert sold out his interest to Alderman for five thousand dollars, payable at twelve months, with interest at three per cent, but it was expressly agreed that the name of Cavert should continue in the firm and the firm business go on under the old name. Shortly afterward Alderman died and Cavert took administration on his estate. He claims the right as the surviving partner to hold the assets and wind up the firm business, it being unsettled and debts due at the time of the death of the intestate. He also claims the right to retain this debt of five thousand dollars and interest out of the assets. The claim was not presented to the probate judge for allowance.

The right of a surviving partner to retain possession of the firm property and settle up the firm business is a familiar rule of the common law, and the principle is incorporated into our own statute. It is said, however, that this rule has no application to this case, but is limited to an actual partnership in which the survivor has a beneficial interest in the estate. It is argued, on the other hand, that this is not the ease of a mere liability as partner, which occurs where one partner withdraws from the firm, but omits to give notice, and thus is held bound for the debts to persons ignorant of the change of the firm; but that it is the case of an express agreement for the continuance of the old member in his relation of associate in the concern; that as to the creditors of the firm the associate would be a partner, subject to all the liabilities of that relation; and he would have a right to insist upon the performance of the duties of the other associate necessary to his protection, and to the application of the firm property to the firm debts, and that if held liable as a partner, he is entitled to the protection of one.

This reasoning is more specious than sound. There is little difference between Cavert agreeing expressly to let his name be used in a business in which he had no interest, and his suffering it, by neglect or otherwise, to be so used. He was not a partner. There is no definition of partnership which would include him. There can be no partnership without a community of interest in the profits, and he had no share either in profits or losses, nor any interest in the capital stock 'or business. Story on Partnership, section 18, thus defines