47 Wis. 375 | Wis. | 1879
The plaintiff, as evidence tending to show an existing partnership between the two Coverts, offered in evidence a chattel mortgage purporting to have been given by Augustus Covert to George Covert to secure the sum of $2,000, dated February 13,1877. This was objected to by the defendant, and excluded by the court. We think this evidence was properly excluded. It is difficult to understand how the giving and taking of the mortgage would tend to prove a partnership. It seems to us the only relationship between the parties, which would be proved by this transaction, would be that of debtor and creditor.
The plaintiff also offered to show by'his witnesses, “that from- July, 1873, to the middle of February, 1877, the business of buying and selling grain, coal and other things in the village of Clinton, Rock county, Wisconsin, carried on in the name of A. Covert, was understood by the public there as being carried-on by George Covert and Augustus Covert in
The plaintiff testified that he first saw Augustus Covert at his office in Milwaukee, in the latter part of October, 1876, when he desired to purchase some coal; that Augustus Covert made certain statements to him, upon which he made inquiries at the commercial agency, and was to ship the coal if he found his statements correct; and that he did not see him again until after he shipped the coal.
The counsel for the plaintiff then offered to prove by him “ that Augustus Covert at the time represented that his brother George was a partner of his, and that he was responsible, and that the business was carried on in the name of Augustus Covert on account of his brother having another partnership, in the drug business; and that the plaintiff declined to send the goods at all until he investigated by inquiries at the commercial agency; that he did make such inquiries, and learned from those inquiries that George was a partner; and that he shipped the goods on the faith and credit of George being a partner of Augustus Covert.”
After the evidence was closed, the plaintiff’s counsel asked the judge to instruct the jury as follows: “ If you find from the evidence that at anytime between July, 1873, and February, 1877, George Covert was partner with Augustus Covert, under the firm name of ‘ A. Covert,’ then the presumption is that he continued such partner until public notice of the dissolution of the firm.” This was refused, and exception taken.
The record shows that evidence had been given on the trial which tended to show, and as the learned circuit judge chai’ged the jury, did show, that for some time previous to the middle of March, 1874, the respondent, George Govert, was doing business with his brother Augustus as a partner in the grain and coal business at Clinton, in this state, under the name of “A. Covert;” that the existence of such partnership was known to the people of Clinton and others previous to March, 1874; that no notice of the dissolution of such partnership had been given by either party thereto, in any way, previous to the date of sale of the coal by the plaintiff; that the plaintiff had never had any dealings with the partnership previous to the sale of the coal, and knew nothing of the existence of such partnership until the time he made the sale; that the partnership had in fact been dissolved by private agreement between the ■ parties, about the middle of March, 1874; and that the plaintiff had no knowledge of such dissolution at the time he made the sale.
In this state of the evidence it is claimed that, notwithstanding the partnership had been dissolved by the mutual agreement of the parties, as no notice of such dissolution had been given, it was competent for the plaintiff to show that they were generally reputed to be still partners in the same business, in the place where the business had been carried on, down-to the time of the sale made by the plaintiff to them.
If we were to hold, as is claimed by the learned counsel for the appellant, that, when it is once shown that the defendant was a partner, he remains liable for all debts contracted by any member of the firm relating to the partnership business until the retiring partner gives notice of the dissolution of the
As the evidence in this case shows that the plaintiff had no former dealings with the firm, and did not know of its existence until immediately before the sale was made, he could not recover in this action unless he showed that, previous to making the sale, he had knowledge that such firm was reputed to exist, and that his sale was made on the faith that it continued to exist at the time of the sale. It was therefore important for him to show, first, that he was informed that such a firm was reputed to still exist; and second, that he sold his coal on the credit of such firm. We are of the opinion that the evidence offered and rejected should have been received for this purpose, and that the offers of evidence which were rejected tended to prove these facts.
If the plaintiff had, in addition to the fact of the previous existence of the firm, shown that the general reputation in Clinton, at the time of the sale, was that the partnership continued between the Coverts, that he made inquiries, and was informed that such reputation prevailed there, and that he sold the coal upon the strength of such information, we are inclined to think he would have been entitled to recover, notwithstanding the dissolution of the partnership, unless respondent showed that he had given a public notice of such dissolution, or that the plaintiff had knowledge from some other source that such partnership had been dissolved, or that he had no knowledge of the fact of such general reputation.
We are not inclined to hold that a party who never had any dealings with or knew of the existence of a firm whilst it was in fact in existence, can recover against a retiring part
As the appellant offered to show this reputation, and also prove that upon inquiry this reputation was brought to his knowledge, and that he acted upon the fact of such reputation in making the sale of the coal, we are of the opinion that the evidence should have been received, and that it was error to reject the same. 2 Greenl. Ev., § 483; Bernard v. Torrence, 5 Gill & Johns., 383-405; Carlton & Manning v. Ludlow Woolen Mill, 27 Vt., 496, 498.
We are inclined to hold, both upon principle and authority, that general reputation is not admissible to prove the fact of partnership, nor as corroborative of other evidence to prove such fact; but, as a person who is not in fact a partner, may, by holding himself out as such, render himself liable to parties who deal with the firm on the presumption that the fact exists which his acts tend to evidence, it may be that general reputation iu the community where he resides that he is a member of a firm doing business there, especially when such reputation is created by the acts and declarations of the party himself, or even if he have knowledge of such reputation and permit it to exist without any contradiction on his part, may be given in evidence in favor of one who has acted upon the fact that such reputation existed, and given credit to the firm on account
The general rule is, that he will remain liable to all persons who have had dealings with the firm, until he gives them notice of the dissolution, or until they have in fact notice of such dissolution from some other source. Young v. Tibbits, 32 Wis., 79; Clapp v. Upson, 12 Wis., 492. As to those who had no dealings with the firm, hut knew of its existence whilst the firm was doing business as such, a public notice of such dissolution will be sufficient to relieve the retiring partner as to such parties thereafter doing business with the firm; and to those who neither had dealings with nor knew of the existence of the firm whilst it existed, he will not be liable even though no notice of dissolution of any kind be given, unless he does some act or acts, or permits or suffers acts or things to be done, which would lead such persons, having knowledge thereof, to believe that the firm continued to exist at the time of their dealing with the other partners on the credit of such firm.. And, as we have said above, if he knowingly permit it to be-generally reputed in the place where he resides, that he still remains a member of the firm, and take no step to deny or counteract such general reputation, such reputation may be received in evidence for the purpose of charging such retiring
• As stated above, we think the instruction asked by the appellant was too broad, and was therefore properly rejected.
For the error in rejecting the evidence offered by the plaintiff, the judgment must be reversed.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.