
    John F. Klump et al., App’lts, v. Guy H. Gardner et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 16, 1889.)
    
    1. Assignment fob benefit of cbeditobs—Pabtnebship—Poweb of one
    COPABTNEB TO EXECUTE.
    It is a well established rule that one or more members of a copartnership firm cannot execute a general assignment for the benefit of creditors, with or without preferences, without the consent of the other member or members of the firm, but if it appears from the acts or declarations of such member "or members, either before or subsequent to the assignment, that he or they have assented to making it, or that it was made- by his or their authority, it is valid.
    S. Same—Authoeity of one copabtneb to execute assignment in fibm
    NAME.
    Where one of the members of a firm has authority to execute an assignment of the firm property, he has authority to execute it in the name of the firm and by himself, and to acknowledge it as such, and an attempt to acknowledge it on the part of another member individually may be treated ■as surplusage.
    Appeal from judgment of the general term of the supreme court, in the first judicial department, entered upon .an order made March 2, 1888, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at special term.
    The nature of the action and the material facts are stated in the opinion.
    
      James L. Bishop, for app’lts; Henry P. Starbuck, for resp’ts.
    
      
       Affirming 15 N. Y. State Rep., 100.
    
   Haight, J.

—The plaintiffs, as judgment creditors, brought this action to set aside a general assignment for the benefit of creditors, made by the defendants Gardner and Daggett to the defendant Heald, upon the ground that the same was void and was made with intent to hinder, delay and defraud creditors. The defendants Gardner and Daggett were copartners, doing business as shipping merchants in the city of New York, under the firm name of G. H. Gardner & Co. The assignment was made on the 9th day of •October, 1886, and was executed by Daggett, who first signed the firm name “G. H. Gardner & Co.;” underneath he signed the name “Guy H. Gardner, by David Daggett, by authorization.” Then follows his own name. The assignee, Heald, also signed for the purpose of accepting the trust, in accordance with the provisions of the statute. The assignment was executed in the presence of Henry P. Starbuek, who signed as a subscribing witness, and the same was acknowledged before a notary public by the defendant Daggett.

It is contended that the execution of the assignment and the acknowledgment thereof was not in compliance with the provisions of the statute, and that the instrument was, therefore, void. So far as Daggett attempted to execute the instrument in the name of Guy H. Gardner, and to acknowledge it in his name, we shall attempt no justification. We shall consider only the execution of the instrument by him in his own name and that of the firm, and, to that extent, the acknowledgment appears to be regular in form and sufficient. It thus becomes a question whether Daggett, as one of the members of the copartnership, could execute the assignment of the firm property.

The rule appears to be unquestioned, and is to the effect that one or more members of a copartnership firm cannot execute a general assignment for the benefit of creditors, with or without preferences, without the consent of the other member or members of the firm. But, if it appear from the acts or declarations of such member or members, either before or subsequent to the assignment, that he or they assented to making it, or that it was made by his or their authority, it is valid. The leading case upon this question which has been cited and approved in numerous cases, is that of Welles v. March (30 N. Y., 344), and, inasmuch as the rule is not questioned, no further citation from the authorities is necessary.

It thus becomes important to determine whether Daggett executed the assignment, by the authority or with the consent and approval of Gardner.

It appears from the evidence that the firm was in somewhat straitened circumstances and that Gardner determined to take a trip to Australia, and to there attempt to make sales of goods, etc., in sufficient amounts to relieve the firm from its embarrassment and pay up its liabilities; that thereupon he left New York for Australia on the 30th day of May, 1885, leaving Daggett in charge of the business. After his departure, Daggett became frightened at the growing embarrassments of the firm and telegraphed Gardner at San Francisco to give up the Australian trip and to return and help him. To this Gardner replied by wire, that it would be folly; that he was to sail that noon, and then wrote him a letter, under date of June sixth from which we make the following quotations bearing upon the question under consideration:

“Now, as to my coming back, I have lain awake most of the night thinking over matters and trying to decide what is best, and I cannot see any way my return would benefit us, but can see much harm, not to mention the loss of $500 in expenses. In the first place, my return would naturally make a great deal of talk, as it is known I have started, and what explanation could we give? In the second place, unless we did raise the money, we would be only worse off, for now if you have to ask for an extension of time, you can readily get it, as you will of course say that it is only to give me time to sell the goods we own and thus pay off everything, and I will do it too; for, if you have not sold an interest, I can afford to give, and will, if necessary, give a large inducement to the trade there to give me orders from Gat., and I guarantee $25,000 in four to five months. * * * Should you have to make an assignment, make Mrs. A. a preferred creditor, and Morton, B. & Co., for any outstanding drafts on credit. Don’t forget to put in Iron Company stock as an asset for 4,000 pounds (it will bring-that easily), and Grenade stock for at least $10,000.”

The letter contains further statements of their assets' and liabilities and the assurance that in six months time they must come out right side up. He then exhorts Daggett to do the best that he can to keep the pot boiling until he could relieve him, to get extensions of time by giving-notes, etc.

It further appears from the evidence that Daggett did continue the business until the 9t.h day of October, at which time, the pressure from creditors was so great, that the assignment in question was made. The authority from Gardner to execute the assignment, if such exists, is to be found from the foregoing letter and the circumstances, under which it was written. The firm, as we have seen,,, was then in straitened circumstances; Gardner was at the point of sailing to a distant country, from which it took: several weeks to communicate by mail. Daggett had been left in charge of the business. The letter directs him to-continue it and to do the best he could to get extensions of time, etc. But, should he have to make air assignment, to-prefer certain creditors, naming them. Then follows, directions in reference to certain assets.

It appears to us that this was intended and must be understood as giving Daggett authority to make an assignment, and that that authority extends to any time in the-future during Gardner’s absence in Australia when it should become necessary. The instructions to continue-the business, to get extensions of time, etc., of necessity leads to this conclusion. It is true that the instructions, required Mrs. A. and Morton, B. & Co. to be preferred. Mrs. A. referred to Mrs. Atwater from whom the sum of' $5,000 had been borrowed. Morton, B. & Co. referred to Morton, Bliss & Co. on whom Gardner was to draw his drafts for expenses while abroad. In continuing the busi ness, Daggett had paid Mrs. Atwater her claim, and had also paid Morton, Bliss & Co. the drafts that had been drawn upon them by Gardner, so that, at the time of the ■assignment, there was nothing standing to their credit, and, consequently, they could not be preferred in the assignment. The argument to the effect that the letter only .gave authority to make the assignment upon condition that these persons should be preferred as creditors, and that their claims having been paid and disposed of so that they could no longer be preferred as creditors, the authority to make the assignment also terminated, appears to us to be untenable.

As to the acknowledgement, we have already said all that was necessary. If Daggett had authority to execute the assignment of the firm property, he had authority to execute it in the name of the firm and by himself, and to acknowledge it as such, and the attempt to acknowledge it on the part of Gardner, individually, may be treated as surplusage.

Several exceptions were taken to the refusal of the trial court to find the facts as requested by the plaintiffs. We have carefully examined the evidence bearing upon these questions. There is evidence which sustains the findings of the trial court, and the general term has affirmed the same. Inasmuch as these exceptions involve questions of fact, and the weight of evidence, we must consider them as finally disposed of in the court below.

It follows that the judgment should be affirmed, with costs.

All concur.  