Shepherd v. Truitt, 36 N.C. 33, 1 Ired. Eq. 33 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 33, 1 Ired. Eq. 33

THOMAS SHEPHERD vs. ISAAC TRUITT et al.

A bill filed by a creditor, charging that his debtor was a partner in a particular firm, and that he had purchased his debtor’s interest therein, under an execution against him, and calling for an account of the part nership, cannot be sustained upon proof merely of a frauduíeút sale or transfer of some of the goods to the firm by the debtor, because such sale or transfer will not make him a partner therein.

In 1835, a mercantile firm was formed and did business at Franklin, in Macon county, under the name of Joseph Welch & Co. It was composed of the following known and open namely, James Truitt, Robert Hall and Joseph Welch. In August, 1835, Isaac Truitt went to Charleston, in South Carolina, to purchase goods for the firm; and in its name, and with its means, he made purchases to a considerable amount. At the same time, he made purchases in his own name, and upon his own credit, to the value of about $600; and these last goods were packed and marked in his name, and so arrived at Franklin, in wagons, with the others. Upon their arrival, they were all taken into possession by James Truitt, Hall and Welch, as the effects of Joseph Welch & Co.; and were put into their store together, for the purposes of sale; so that the particular goods purchased in the name of Isaac Truitt, could not, as the plaintiff alleged, be identified.

The bill stated that Isaac Truitt was then much indebted, and, indeed, insolvent; and that,for that reason, he was not held out as a partner in the firm of Joseph Welch & Co.'; but that he was in fact a secret partner; and that the goods bought and sent in his name, formed a part of the capital stock of the firm, put in by Isaac Truitt. It then charged, that Thomas Shepherd was a creditor of Isaac Truitt, and “ directed the sheriff to levy his execution on the interest of said Isaac in said store; and that the said Isaac’s interest was accordingly exposed to sale and purchased by the plaintiff” in September, 1835. The bill was filed against Isaac Truitt, James Truitt, Hall and Welch; and charged that they denied that Isaac Truitt was a partner in the firm, and consequently refused to come to any account with the plaintiff. The prayer was, that the defendants might discover the terms of the contract of co-partnership, and that there might be an account, and the plaintiff paid what might be found due to him thereon.

The answers stated that Isaac was indebted to James Truitt; and that it was agreed between them, when Isaac went to Charleston to purchase the goods for the firm, that he should also make the purchase as above mentioned, on his own credit; and that Janies would take those goods in discharge of his debt; and that, when they came, they were received by the firm, and credit for the value thereof given on the books to James Truitt, and not to Isaac. All the defendants distinctly denied that Isaac Truitt was a partner, or had any interest in the firm of Joseph Welch & Co.

There was evidence that the members of the firm were desirous that it should not be known, that any of the boxes ' J were marked with the name of “ Isaac Truitt;” that the sheriff levied on one of these boxes of goods, but it was nevertheless opened, and the goods put into the store with the others. Afterwards, the sheriff, without disturbing the possession of any of the goods, put up to sale, at the store, the interest of Isaac Truitt in the store, and the plaintiff purchased it at $400. The plaintiff examined several witnesses, and amongst them, the clerks in the store, as to the interest of Isaac Truitt therein; but neicher of them gave testimony that he was a partner, or in any manner contradicted the answers on that head.

No counsel appeared for either party in this Court.

Ruffin, Chief Justice,

having stated the case as above, proceeded as follows: The proofs in the case can, at the utmost, only raise a suspicion of the fairness of the transfer of the goods from Isaac to James Truitt or the firm. But, if that be admitted to be fraudulent, it still could avail nothing in this suit. The plaintiff did not purchase those articles in particular, as the goods of Isaac Truitt; and, on the contrary; his bill states that those articles are, in fact, unknown. If he had bought them, he would probably have brought trover. The sale was of a different kind. It was of the interest of Isaac Truitt in the- store, as a partner; and the scope of the bill is to establish that he was a member of the firm; and to have an account, shewing his interest therein; and to give the plaintiff the benefit thereof under his purchase. Now, a fraudulent sale or transfer of some of those goods, did not make the vendor a partner- in the business. To notice no other objection, therefore, the plaintiff must fail; for he has not proved that Isaac Truitt was, in any way, either openly or secretly, a partner. Bill dismissed with costs.

Per Curiam. Bill dismissed.