Van Doren v. Horton

The appeal from the order refusing a new trial raises no question for review. As there was no verdict rendered, the case Was not one in which a motion for a new trial could be made on the minutes. The right to make such motion is given by section 999 of the Code of Civil Procedure. That section provides that “the judge presiding at a trial by jury may, in his discretion, entertain a motion, made upon his minutes, at the same term, to set aside *9the verdict and grant a new trial, upon exceptions; or, because the verdict is excessive, or for insufficient damages', or otherwise contrary to the evidence, or contrary to law.” It is not enough that a jury was impanneled ; unless a verdict was rendered, the party seeking a new trial cannot move for it on the judge’s minutes. Wo held, last term, in the case of Sizer v. Ray, that a nonsuit is a trial by the court, within the meaning of section 1346 of the present Code, and that ruling confirms the view' above expressed. We have referred to the point, rather for the purpose of indicating the correct practice, than because of its bearing on the present case. The order should be reversed as irregular.

The only question properly before us is raised by the appeal from the judgment. Had McPherson authority to sell the partnership property after the dissolution?' There can be no doubt but that, if the sale had been made during the existence of the co-partnership, it would have been valid. The case of Robbins v. Fuller (24 N. Y., 570), cited by the appellant’s counsel, seems to bo an authority for holding that the power existed. In that case, one of the partners, six years after the dissolution, without the knowledge of the other partner, gave a power of attorney in the name of the firm to his son, to sell the unpaid demands of the firm. The son sold a judgment which the firm had recovered against one Fuller for $1,767.13 to one Wells, who settled and discharged it for $100 paid by Fuller. The other partner had no knowledge of these facts at the time, and newr received any pay on the judgment, nor did he dispose of his interest in it, and at the time of the giving of the power of attorney, the co-partners, as such, owed no debts. On these facts, the other partner, suing in the name of himself and his co-partner, sought to recover one-half of the judgment, less the $100 paid to Wells. A recovery was had below, but the Court of Appeals reversed the judgment, holding that each partner, after a dissolution, possesses the same authority to adjust the affairs of the concern, by collecting its debts and disposing of its property, as before the dissolution, where there is na agreement to the contrary ; that such right is not lost by the fact that the partnership debts are paid ; nor, it seems, docs it depend upon the state of the accounts between the paztners, at all events not as against persons having no notice of the fact. *10Here, the evidence is that at the time of the transfer there were partnership debts unpaid, and the state of the accounts, as between the partners, does not appear. Judgc Dbnio, who delivered the prevailing opinion, said, that although the dissolution of a firm, annuls the powers of the respective partners for many purposes, and particularly as to the contracting of debts against the co-partnership, it does not terminate their authority to administer the assets in accordance with the rights and interests of the parties interested in them, and with the intention of the partnership enterprise. And he laid stress upon the consideration that there must be some one to adjust the affairs of the concern, by collecting its debts and disposing of its property, and dividing the proceeds among the parties entitled, and he concluded, that where, as in that case, none of the parties are specially empowered for that purpose, to the exclusion of the others, the individual partners retain the same authority which they possessed before the dissolution, so far as it may bo necessary for such purposes.

The counsel for the respondents suggest that, in the present case, exclusive power to dispose of the partnership property -was given to the Hortons by the agreement of dissolution. We do not so understand it. The power given to the Hortons was limited to the collection of the outstanding credits and applying them to the payment of the outstanding liabilities of the firm,. and their action was to be completed within six months after the .dissolution. It is very evident that the power did not extend to a sale of the chattels owned by the firm, and especially to a sale of the property in question, the possession of which the respective members of the firm had a right, by the terms of the agreement, to retain for one year.

The authority which the agreement gave to Lee was expressly confined to the adjustment and settlement of the accounts of the members of the firm, as between themselves.

We have dealt with the naked question of power, as that appears to have been the only point decided at the circuit. The question whether the transfer by McPherson was fraudulent as against the other members of the firm, or as against creditors, was not entered upon at the trial, and is not presented by the appeal.

*11The judgment, as well as the order, should be reversed, and a. new trial ordered, costs to abide event.

' Judgment and order appealed from reversed, and a new trial ordered, costs* to abide event.