M’NICHOL v. PHELPS. 9
_ In Equity. On motion for an injunction and receiver.
Certain creditors of Martin Geiger obtained judgment, and levied I
execution upon his interest in the stock in trade and accounts of
Geiger & Phelps, a firm engaged in the crockery business in the city
of Detroit. Both partners were citizens of Michigan. The property of if
the partnership, which complainant alleged to be of the value of
$8,000, was incumbered by a mortgage to Geiger’s wife of $1i170.
Geiger’s interest in the partnership was also incumbered by other `
mortgages to the amount of $1,700. Complainant, who was a citi-
zen of Ohio, purchased the interest of Geiger in the property at exe-
. cution sale, and filed this bill against Phelps & Geiger for at ac- .
counting, in order that Geiger’s interest in the firm might be adjusted
and turned over to the complainant. ’
Geo. W. Bates, for complainant.
Charles F. Burton, for defendant Phelps.
Baowu, J. Ineopposition to this motion, defendant Phelps insists
that this is a suit "founded upon contract in favor of an assignee,"
and therefore not cognizable by this court, because, under the act of '
1875, it could not have been prosecuted herein by Geiger, if no sale of
his interest in the firm had taken place. He urges that complain-
ant’s interest arose from an implied contract between Geiger and
Phelps, under which, in case of a dissolution, each was bound to ac-
count to the other, and divide the surplus equally; and that com?'
plainant, who bought Geiger’s interest, is, in law, an assignee of such
contract, and took by his purchase a mere right to demand an ac-
counting by Phelps, and no interest in the partnership property}
He relies for this position upon the authority of Wilkinson v. Wil-
kinson, 2 Curt. 582, in which it was held, under the eleventh sec-
tion of the judiciary act, that an assignee of a right to an account
of the proceeds of sales of mortgaged property cannot maintain a
suit in the circuit court of the United States, in a case where his as-
signors were not competent, upon V the ground of citizenship, to sue s
the defendant. We do not deem this ruling conclusive upon the point,
as all the property in this case had been converted into money. The
statutes, too, are quite dissimilar. Upon the other hand, complain-
ant argues that the sale of Geiger’s interest to him passed an interest
in the partnership property itself, and that the accounting is but an
incident to the determination of such interest.
There is no doubt that the sale of Geiger’s interest wrought a dis-
solution of the partnership. Complainant and Phelps thereby be-
came tenants in common of the partnership assets, subject to the