James Chambers, Ltd. v. Smith

Learned, P. J.,

(dissenting.) I should think the reasoning of my Brother Mayhah’s opinion conclusive, if it were notfortherecent decision of Durant v. Pierson, in the second division of the court of appeals. 26 FT. E. Rep. 1095. In that case a surviving partner of an insolvent firm had borrowed money after the death of his partner. It was admitted that this did not create a debt of the firm, and that the note which he gave was only a debt of the survivor. Inasmuch, however, as he had used a part of the money thus borrowed to pay the debts of the insolvent firm, it was held that he might prefer this individual debt in his assignment, and might direct its payment out of the partnership assets before partnership debts. How, in the present case, the deceased partner borrowrnd the money, and gave his own notes for it, and the money went into the business. The surviving partner, who (as in the Pierson Case) was the son of the deceased partner, and succeeded to the business, and to'his father’s property, treated this as a liability which he ought to pay, and he did pay the interest. He made assignment, and preferred these notes. If, then, a surviving partner can prefer his own note over debts of the firm in respect to firm assets, for the reason that part of the money was used to pay firm debts, I see no reason why such surviving partner may not prefer, in like manner, his deceased partner’s notes, when the money borrowed thereon has been used in the firm business. As said in the Pierson Case: “The creditors have not been harmed or prejudiced, * * * for the assets were increased in value to the amount of the loan:” So, in this case, the assets of the firm were increased in value by the money loaned to the deceased partner, and therefore the creditors of the firm are not prejudiced by the preference. It may be added that, as between the partners, or, more accurately, as between the surviving partner and the estate of the deceased, this assignment is more equitable than that in the Pierson Case. That preferred the assignee’s own debt; this prefers a debt .of this deceased partner. It seems to me that the principle established in the Pierson Case sustains the finding below, although, if it were not for that case, I should think the reasons of my Brother May-ham’s opinion unanswerable. Respect for that decision, therefore, compels me to dissent.