Penniman v. Loney

Robinson, J., delivered the opinion of the Court. On the first day of January, 1871, a co-partnership in the hardware business was formed under the name of F. B. Loney & Co., consisting of Francis B. Loney, Irwin Neale, Jerome W. Price, Richard B. Gunn, John J. Hoof and B. Gordon .Thomas. In the latter part of the same year the firm became embarrassed and failed. Upon the petition of B. Gordon Thomas, one of the partners, a receiver was appointed to take possession of the effects, and collect the outstanding debts due the firm.

Petitioning creditors were then admitted as parties, and a subsequent order was passed, with the assent of the creditors, directing the receiver to convey to the appellant, upon the payment of sixty thousand dollars, all the stock, assets, and property of the firm, as set forth in the receiver’s report. ⁴⁷⁵ After these proceedings, to which no objection was made, a dispute arose between the appellant and the appellee in regard to what constituted the assets of the firm. It appears that prior to the formation of the partnership of January 1st, 1871, a firm had existed of the same name, in the same business and at the same place, composed of Loney, Findlay & Roberts, of which the appellee had become the sole proprietor, by purchase of the interests of Findlay & Roberts, the other partners. The question in controversy was, whether certain debts due to this antecedent or old firm of the estimated value of $2500, passed to the appellant, under his purchase and deed from the receiver. In the former appeal, this Court decided that these debts did not constitute part of the assets of the new firm of January 1st, 1871, and did not therefore pass to the appellant, under the receiver’s deed.

The cause was remanded for further proceedings, and on the 19th of July, 1873, the Court below passed an order directing the appellant to return all books and property taken possession of under the receiver’s deed, and which did not constitute a part of the assets of the firm of January 1st, 1871. In the meantime, while the former appeal was pending in this Court, the appellant collected from the debts due the old firm, and to which by the decision of this Court, he