FEDElRAL REPORTER,vol. 48.. l,.
But, e ventit: he (Scott) was familiar with, transactions' of this· character made the stoekexchl1nge in New York, his company could hardly be held responsible on account of such knowledge possessed by one of its employes. But, even if it could be conceded that an order to sell an order to buy,.the question remains uncertain as to when ,.such auprder to givenfor execution. That would, in the nat!1re of things, depend: upon. the market, and upon the buyer's judgment of the' market. Again, the legal, if not the only, presumptionwol1ltl'bethatCal'inwtts sale of his own stock, Rnd not that he contemplated the sale of something he neither'had nor'proposed to, acquire, with ,no :intention ,that in the sale oJ.'pered an actual .deliveryofthe,sto.ck :wa.s to be, made, for such inYolye a violation of the, law as it has, peen held in SOme of the ,courts, lin country. In allY of the Cllse, we' perceive no error cnarge to ,the jury ,the below and the is ,afin ,nrmedj,and it so,
(CireuA.t Oqurt, S. D. ,IlUnois. May, 1881.)
, A partriershipbeing unable to pay a note upon which it became liable bya partI\ership indorsement, its, stg/led, as individuals, tb& creditor for a? extension ,time, agreeiogto convey to him before the expiration thereof oertam lands, whleb. were to be SOld, and any excess after' payment of the debttui'nedover to theparl;Ul\l'II. Held, that the agreemllntJP,erely provided a se curity fort,he original partnerahip debt, and on the subsequent bankruptcy of the firm and itS tnembersthe"debt was provable against the partnership, and not , against the individuals. !,
,;, In Bankruptcy.
from the decision of court that jthe plaintiB;s claim was provable against the pa..-tnership, and not against tb,eestate of a par,tner. W. a. Kue,ffneJf',for creqiWr. '_,_ F. A. McConaughy, for assignee.
J. Moritz;r. pobschutz and JosElphAbend were part,ners in bua:ines$, and became indebted to the plaintiff on their own note, :it,ls,makers, for $4,500, upon which some payments were made" leaving 'about $3;000 due, and on,two notes given by & Browson of $8,000 each, and indorsed, by Dobschutz & Abend. 'The latter became -bankrupts 'as partners nnd as individulJ.Is, a decree in bankruptcy was 'l'enderedagaipst them; and an assignee appointed; and the plaintiff which th,e bankrupts had inclaims the indebtedness on the two dor,sed was, provai:>le the separate of Dobschutz. The district court thatJt was a debt,and was provable, not against the separate, but against the partnership, estate. From this de-
GAUSS t1. SCHRADER.
cision Gauss has appealed. to this court, and in conformity with the statute has filed a statement of the case in the nature of a declaration, to which a demurrer has been interposed by the assignee; and the question in the case is whether the. decision of the. district court is right, or whether it is competent for the plaintiff to prove his claim against the individual estate of Dobschutz. The controversy mainly grows out of a contract which was made between Dobschutz and Abend and the plaintiff on the'13th of August, 1875. It seems that the bankrupts at that time were not able to pay the amount that was due to plaintiff, either 0n the note of which they were the makers or on those on which they wf:>rerthe indorsersj and the plaintiff was willing to extend thetime of payment for two years, provided security were given him. 'f11ere seems t9be'DO controversy that the indebtedness on all these notes of the bankrupts to the plaintiff was a partnership indebtedness; that is inferable from the statements contained in the declaration. The contract between the parties, referred to was under and signed. by eaoh of them. ,in,dividually. It set forth that the plaintiff held these notes against the ;bankrupts, and it admitted that the bankrl\pts were responsible as .w.ellon the notes which they had in,dorseda8 on that of which they were the makers, and it then proceeded to state that in conaideration of this, and to secure the plaintiff' against loss, the bankrupts agreed to convey to the plaintiff, on or before two years from the date of the agreement, certain real estate which was described. By the contract the plaintiff agreed to wait for two years on the bankrupts, and to give them that time to find a purchaser for the' property, and when the property was sold he was to receive enough to pay whatever was due to him, and turnover the balance to the bankrupts. 'l'he .declaration alleges that this conveyance was never made to the plaintiff. It makes no claitp f.or I,lnydebt due on the note of $4,500, but only for the amount due' on the other two notes; and it alleges that by this contract Dobschutz ana Abend bound themselves individually as well as jointl)', and not as. partners or in their partnership name, for payment of the two 83,000 notes. H will·he seen that the agreement to convey the land was not for the purpose of payment, and if conveyed it would not have operated as such, hut only as security for the payment of the indebtedness, so that the effect of the failure Of the bankrupts was simply that they did not give the security which they agreed to give. The result was that the plaintiff thus gave time to the bunkrupts, and the character of the debt remained unchanged. It was still a partnership debt due from the bankrupts to him. It becomes, therefore, a question of importance in this case, in view of the partnership and separate assets of the bankrupts and of the rights of their creditors, to determine whether it is equitable for the plaintiff, as against other individual creditors of Dobschutz, to prove his claim against him. We have to look at the case upon general principles of equity, and not as to the mere technical right of the plaintiff. It is true that this agreement between the parties was signed by Dobschntz and Abend individually, and there might be a. v .48F.no.1O-52
technicalliability'against them" for not ,giving the security which they had agreed to give; but, as has rbeen already said, that did not change the character of the principal indebtedness, and did ,not make it an indi'vidual debt i-nateailof a partnership ,debt. The theory of'the declaration: is in accdrdance with this It does not proceed upon a possible te.chnicalliability against the bankrupts individually, but upon the original indebtedness on the two indorsed notes. The declaration alleges that, while thebanktuptsdid notcinake the conveyance which they had agreed, it would' have been useless if they had, because the propertywhich was the subject,Clftbe agreement was'incumbered to its full \falue; and therefore would not lin any: event have been available as a security to :the plaintiff. LOOking at this case in its general sCope and bearing, as it appears by the faetiiflet forth in the decltl.ration, and consideringthevariou8 equities ofthe individual creditors of 'Dobschutz, and ,the oharacter of the debt due to the plaintiff. I think that the decision of the district court wilsrigbt,and that the' plaintiff: ought not to be permitted to prove the claim $eNorth in the declaration against the individual estate ofDobtichutz,' rand therefore -tbatithe demurrer to the deolaratioD 'UlWlt be susI" ·
TARSNEY 11. TtmNER.
(Oiriuft own-E. D. MiCMgan.Ootobel' 11,188001 '
AND Wma." . ' , ,When, by'dit:eotion of a wife, the rent. of her separate estate are paId to her "husband with the understlindillg that he wtll: invest themfot her benefit, thi8 'ore8utJicient to con8titu,te a valid oO,Aslderation for Jl 8ub8equent deed frolP , ,ate8 ' hilP to her, a8 ap;ain8t the olailP8 of other creditors.' '9.'S..(JI[I!I:'-B,1i:AnINcf CRBDtBIIJI'rY OJ' WITNBS8. When a party who a88ail8 a conveyance from hU8band to wife, a8lPa4e in fraud of ore.Qitor81 Co,118 the qU8band ap.d wi1e, as witne88e8 qn.d, read81;heir , deposition8 11 cOOrt, he therebyvouohes for theit-oradl billty. and eannot. be heard, in argulQent. to ,que8tion thlli" veraoity", ,'
," J ' ! , ' , ; '
In Bank1'upto,. Bill tQ ,eet ifrn.udulent Wimll'l"e:t-ilff'apll'l", for ' " Camp e:t- Br()()lesandGrijfi". e:t- Dickin8O'll., for defendant. 1873" Hemy Turner'and wife took uptheirresidence iti: East:Saginaw. 'They were apparently in easjtcircumstanees. He soon tlnarea:>fter ,acquirtetl title: to, property, real and personal, worth $50,OOOp'b'ut'by severalinstrumentsbeafingdate fromthe:13th of March ofIJecember; 1877 ,inClusivejhe conveyed,the 'same to deto fendant; hUl'wife, reciting :anaggl'egate: 0[$58,365., On the 31st;af August,. 1878 ,-eight months· and, a' haliflafteutheexecution -of.the lastlof'sai«r canveyances,,-ho :filed-a petition .in the' district court