Rice v. Shuman , 43 Pa. 37 ( 1862 )

The opinion of the court was delivered, by

Lowrie, C. J.

It seems to us that this case was very properly treated in the Common Picas. The agreement between Bixler and Simonton is on its face merely an executory one, and it was never executed. The only act done by Simonton in pursuance of it was to allow Bixler to buy one hundred hides in their joint names, and immediately afterwards he repudiated the contract to become a partner. What, then, becomes of those hides thus bought ? That is the whole question. Bixler and his vendee, Shuman, tanned them with Bixler’s other hides, and, when they were ready for the market, a creditor claims that Simonton is an owner of them. Can Simonton maintain this position ? For, if he cannot, his creditors cannot.

How can he ? In anticipation of the execution of the partnership, he advanced his credit to enable Bixler to buy hides for the intended partnership. But that did not make him a partner any more than if he had advanced money. It certainly increased the measure of redress to which he would have been entitled if Bixler had violated the executory agreement, but it vested no title in him to any of the propertythat could be done only by the-completed fact of partnership. The hides were bought for that tannery, and never intended to be joint property unless both should become partners in the tannery. Simonton rejected the partnership, and therefore had no title to the hides bought for it. It would be strange if he should own half the leather made from them’without his being a partner.

Judgment affirmed.