131 Pa. 492 | Pa. | 1890
Guthrie’s appeal.
Opinion,
In 1866 a copartnership was formed under the name of the Pittsburgh Savings Bank, for the purpose of transacting a banking business at Pittsburgh, Pa. The capital was fixed at
The learned auditor, being of opinion that the fund belonged to the partnership as it existed after August 25,1876, and was primarily applicable to the payment of its debts, refused to award any portion of it to these claims. In explanation .and vindication of this refusal, he said: “ The fund belongs exclusively to the parties to the present bill in equity, they being
The contention of "the appellant is not so much with the principles announced by the auditor, as with their application to the case in hand. He claims that under these partnership articles, and in view of the manner in which the business of the bank was conducted and its accounts were kept, the retirement of an old stockholder and the introduction of a new one did not work a dissolution of the company, but that it remained, and the incoming partner became liable for all its debts.
It is a well-settled rule that an incoming partner is not liable for debts contracted by a firm before he entered it. He may become liable for them by his contract with the retiring partner, but the party who alleges such liability must prove the agreement which created it: Kountz v. Holthouse, 85 Pa. 235. The purchase of stock in an unincorporated bank, and a continuance of the business, without any separation of past from future effects and liabilities or discrimination between past and future profits, will not render the purchaser liable for the antecedent debts of the bank. The payment by the bank, after he became a member of it, of interest on such debts, is insufficient to
We are unable to discover in the restrictions on the sale of stock any engagement by the incoming partner to become liable for the antecedent debts of the firm, and we cannot construe article 27 as imposing on him such a liability. If it had been the purpose of the partnership to attach such a result to a change of membership, it should have been clearly expressed. We think article 27 refers to deposits made with the firm of which the stockholder is a member, and that it has no application to deposits made with a preceding or subsequent firm. Thus read and understood, it is intelligible and in accord with well-established principles.
In Clarke’s App., 107 Pa. 436, the parties now represented by the appellant filed a bill in equity against the stockholders of the Pittsburgh Savings Bank, and alleged that said bank was a copartnership, formed under articles of agreement which provided for sales and transfers of stock and allowed any partner to sell his interest in the partnership at any time, and that the assignee of such interest succeeded to the rights and liabilities of the assignor; “ that when any partner sold his interest, and the same was transferred upon the books of the firm to the pur
We agree with the auditor and court below that claims against the Pittsburgh Savings Bank for deposits made prior to August 25, 1876, cannot participate in this fund, to the exclusion of, or pro rata with, claims for deposits made after that date.
It is alleged that the claim of the city of Pittsburgh, transferred to the appellant in trust as aforesaid, represents a debt
The auditor was of opinion that he had no jurisdiction of this claim, because a suit upon it was pending before a referee. The reference of a suit deprives the court in which it is pending of all power over it while the agreement to refer is in force. The court can regain original jurisdiction of it only by setting aside the agreement. It cannot, while the suit is before the referee, pass upon the validity of the claim involved in it, because the parties have cast that duty on a tribunal of their own creation, and what the court may not, in this particular, do- directly, it cannot authorize its auditor to do. We think, therefore, that the auditor was right in refusing to take cognizance of this claim, and, as he was not asked to set aside any portion of the fund to await the decision of the referee, we need not consider his duty in such case.
Decree affirmed, and appeal dismissed, at the cost of the appellant.
BINDLEY’S APPEAL.
Opinion,
In Guthrie’s Appeal, No. 168 October Term 1889, we decided that the portion of this judgment held by Guthrie in trust for former partners could not take any part of the fund. This appellant, as to his portion of the judgment, is in no better position. Guthrie’s Appeal is decisive of the question raised here.
Decree affirmed, and appeal dismissed, at the cost of the appellant.