Townsend v. L. J. Appel Sons., Inc.

Sloan, J., delivered the opinion of the Court. A nonresident debtor’s attachment was issued out of the Baltimore City Court by the appellee, L. J. Appel Sons, Inc., against Arthur W. Townsend and Walter J. Townsend, by which the sheriff of Baltimore seized “1 Brockway Truck, Penna. License Y-11037”. A petition was then filed by Arthur S. Townsend and the said Walter J. Townsend, co-partners, to quash and set aside the attachment, on the ground that the property attached was their property, as copartners, and not subject to attachment.

Gilpin v. Somerville, 163 Md. 40 , 161 A. 272 . The court, on the hearing of the petition overruled the petition to quash, holding that Walter J. Townsend’s one-third interest in the truck was not that of a partner, and was therefore subject to attachment, and it is from this action of the court the claimants appeal. The appellants contend that the truck so seized is the partnership-property of Arthur S. Townsend and Walter J. Townsend, and not subject to attachment for the debts of one of the partners. It is not disputed that the truck is owned by Arthur S. Townsend (who is not the Arthur W. Townsend named as defendant in the attachment) and Walter J. Townsend, his brother; their respective interests being two-thirds and one-third.

The appellee’s contention is that the appellants own the truck in common, and that if. is not partnership property, and their respective interests, therefore, subject to attachment or execution for their individual or personal debts and liabilities. If there was nothing in the case but the mere ownership of the truck, the appellee’s theory would be correct. It appears from the evidence that the appellants owned the truck, which they used in a trucking or delivery busi ²⁵⁷ ness, hiring a driver, Arthur S. Townsend managing the business, keeping the books and distributing the net proceeds, two-thirds to himself and one-third to his brother. They are not designated as partners and did not use a trade-name, but their relations and the course of their dealings were such as are common to transactions between partners.

The nature of the business had all the earmarks of a partnership business. It is inconsistent that the business may be viewed as a partnership, while the property, fixtures and appliances used in the conduct of the business and held in the same proportions as the division of profits and managed by one of them is not partnership property. It would hardly be contended that, if the title and insurance policy had been in the names of the owners as “Townsend Brothers,” or some other such designation commonly importing a partnership, as generally understood, this contention would be made. When the facts show all of the attributes and incidents of a business conducted by two persons for profits distributed in proportion to their respective interests in the property used in and