Moore v. Pennell , 52 Me. 162 ( 1862 )

The opinion of the Court was drawn by

Walton, J.

The share of one of several co-partners in the goods of the firm may be attached and sold on execution for his individual debt; and, as incidental to this right, the officer may take possession of the goods seized, and deliver the whole to the purchaser. But, if he sells the entire property in the goods, it is such an abuse of his legal authority as will make him liable as a trespasser ab initio ; and an action may be maintained against him in the name of all the members of the firm.

With respect to such members of the firm as are not parties to the execution, he is a trespasser, because he has sold their share of the property to pay the debt of others, without any precept or authority in law authorizing him so to do; and with respect to the debtors themselves, because he has sold their' shares jointly with the shares of others, and thereby rendered it impossible to determine what proportion of the purchase-money belongs to them, and how much of it ought to be indorsed on the execution, and because it is their right to have their shares sold separately, to the end that they may not only know the precise amount for which they are sold, but because the sale of a larger amount of property in bulk may injuriously affect the price by limiting the number of bidders. Many persons might have the ability and be willing to purchase the debtor’s share, when they could not purchase a larger amount. Ordinarily we should not expect the price of the debtor’s share to be injuriously affected by selling the entire property, but it is sufficient to protect him against such a sale, to know that such might be the result; that cases might occur in which such a sale would cause his share to sell for less than if it were sold' separately. Many other reasons suggest themselves why the law ought not to sanction such a proceeding, but those already named are deemed sufficient to condemn it.

Such a sale being illegal, and rendering- the officer a trespasser ab initio, the action may properly be brought in the name of all the partners, and they will be entitled to recover the full value of the goods sold, leaving the judgment, to satisty which the property was sold, in no part satisfied.

These principles are decisive of the case now before us, and judgment must be rendered for the plaintiffs, the amount of damages to be estimated by a jury, according to the rules of law, and the principles here laid down. Melville v. Brown, 15 Mass., 82; Walker v. Fitts, 24 Pick., 191; Waddell v. Cook, 2 Hill, 47.

Tenney,. C. J., Rice, Appleton, G-oodenow and Davis, JJ-.-, concurred.