Ash v. Werner

12 Pa. Super. 39 | Pa. Super. Ct. | 1899

Opinion by

William W. Porter, J.,

The parties named as defendants in this case are “ W. Harris Seltzer, Susan S. Seltzer and J. E. Werner, late partners-trading variously under the name of J. E. Werner and Son,, and also under the name of Werner and Seltzer.” From the-evidence it is clear that J. E. Werner was a member of both firms. W. Harris Seltzer and Susan S. Seltzer, on the plaintiff’s own admission, were not members of the firm of J. E. Werner and Son. He testifies: “Q. Mrs. Seltzer or Harris-Seltzer were not members of the firm of J. E. Werner and Son, were they? A. Not that I know of. Q. You don’t pretend that at all ? A. No.”

The second firm, called Werner and Seltzer, is claimed by the plaintiff to have included all three of the defendants as. partners.

Assuming this to be true, we are of opinion that no case-was made out by the plaintiff which entitled him to a verdict-against the Seltzers. The debt sued for was contracted by the: firm of J. E. Werner and Son before the organization of the-firm of Werner and Seltzer. The first named firm continued to exist and to do business with the plaintiff after the second, firm was constituted. The second firm also employed the plaintiff. The accounts of the two firms were kept severableon the books of the plaintiff. The present claim is that a balance due by the first firm at the time of the organization of the second firm has never been paid, and that the second firm is liable for it.

There is no evidence showing any agreement on the part of the second firm to pay this debt of the first firm. Had there-been, it must have been in writing to be enforceable. It would, have been a promise to answer for the debt of another, and within the statute of frauds. It was urged, however, that the: second firm was the successor of the first, and assumed to pay tiie debt of the first to the plaintiff. A careful examination of the testimony discloses nothing which indicates that the-second firm was the successor of the first. The first firm did not pass out of existence nor cease to do business at the creation of the second. Should, however, the second be construed to be but a continuation of the first firm, with the introduction of new partners,'such new partners cannot be held for the debts of the firm precedently contracted. “ It has never been thought, that a man, who buys himself into another’s business, subjects-himself to the liabilities which that other may have incurred previously; nor that a new firm is bound by law to pay the-debts or comply with the contracts of an old one composed partiy of the same members: ” Bewley v. Tams, 17 Pa. 485; Babcock v. Stewart, 58 Pa. 179. A partner who enters a firm already established does not thereby become liable for the debts-of the old firm. Nothing but an express agreement will render him so liable: Hart v. Kelley, 83 Pa. 286; Shoemaker v. King, 40 Pa. 107.

The evidence discloses no contract between the old firm and the new firm, or between the old firm and the incoming partners (if it shall be assumed that the old firm was continued), or between the new firm and the plaintiff, by which the new firm agreed to pay the debt due the plaintiff.

The facts that W. H. Seltzer was the manager of the firm of' J. E. Werner and Son, and (as he says) of the firm of Werner and Seltzer, composed of J. E. Werner and Mrs. Seltzer; that he made a payment of a sum of money on account to the plaintiff, without designating to which of the firm accounts it was-to be credited; and even that he was introduced to the plaintiff as a member of the new firm, do not fix a liability on the-new firm for the debt of -the old. Liability for the debts of another must be determined by evidence better than that of implication.

Nor do these facts make the Seltzers liable for the debts of the old firm, if they are to be regarded as incoming partners. This last assumption is, however, not warranted by the proofs. The plaintiff (however induced), furnished a statement in his .own handwriting, showing the status of the accounts of the-two firms, and received the cash balance shown thereby to be-due by the second firm. True, he declined to give a receipt in full, but the written statement with the other evidence in the case shows that the debt sued for was unequivocally the debt of the first firm, and that the two firms were regarded by the plaintiff as distinct and separate. The verdict should have been entered as requested by the point of charge, made the subject of the third assignment of error.

The judgment against W. Harris Seltzer and Susan S. Seltzer is reversed.