197 Iowa 450 | Iowa | 1923
The only question presented by this appeal may be stated in hypothetical form as follows: When a partnership is dissolved by the purchase of the interest of one of the partners by another partner and other persons, and the new partnership thus created assumes existing contracts and agrees
It is undisputed that the defendant Mizz Company is a partnership originally composed of M. E. Levey and Hymon Levich. Prior to its dissolution, a contract was entered into between the plaintiff and the partnership whereby plaintiff agreed to purchase from the company a certain liquid refreshment, called “Mizz,” to pay for the same at the time of shipment, and to deposit with the company certain sums of money for each case and barrel containing the product. It was further agreed that the defendant company should repay plaintiff, upon the return of the containers, a specified sum for each case and barrel with the empty bottles.
The petition alleges that the defendants and each of them have failed, neglected, and refused to pay to the plaintiff the sums due and owing him on account of the return of empty barrels, cases, and bottles, pursuant to the contract. Subsequently to the execution of this contract, the defendants Abe Levey and L. Levey purchased the interest of Hymon Levich in the company, and became copartners in the business with M. E. Iyevey, and at said time assumed and agreed to pay all of the outstanding obligations of the Mizz Company. These facts are not questioned.
It is alleged in answer by the defendant Levich that the members of the new partnership were, on March 20, 1919, and are now, able to pay any judgment which the said plaintiff may procure against them; that the return of the barrels, cases, and bottles giving rise to the claim in suit was made subsequently to the creation of the new partnership; and that the assumption of liability of the partnership obligations was known to the plaintiff prior to the institution of this action; and that the plaintiff knew that the retiring partner was released from said partnership obligations and that the obligations had- been assumed by the incoming partners before the plaintiff had any claim against the Mizz Company or the original partners.
Upon the conclusion of the testimony, the defendant Levieh moved the court for a directed verdict in his favor, on the primary ground that “the evidence is undisputed that the obligation of said Hymon Levieh, if any, has been assumed by the remaining defendants in this case.” The conversation with Levieh is undisputed, and it was stipulated that the trial court should give his testimony “full faith and credit.” The court sustained the motion, and directed a verdict.in favor of the defendant Levieh, submitting the cause to the jury as to the other defendants.
This appeal is based upon the ruling of the court in sustaining the motion as to the defendant Levieh.
The question is whether a creditor who is not a party to the agreement between the partners creating the new relation inter se is bound bj^ the agreement, and must the creditor, after notice, treat the retiring partner, not as a joint debtor, but as a surety? The original partners were joint debtors to the instant creditor on the claim arising under the contract in suit. Did the retirement of Levieh and the assumption of debts by the new firm release him from the obligation? The doctrine of novation is not involved. The creditor neither expressly nor impliedly assented to the assumption of obligations by the new firm. The original partners were joint obligors, and by their contract with plaintiff subjected themselves to all of the contractual obligations arising therefrom. Incoming partners could not change the character of the obligations without the creditor’s consent, as it would violate a fundamental principle of the law
¥e therefore hold, under the undisputed facts in this case, that the defense of release is not available to the defendant Levieh, and that the other defendants are liable by reason of their assumption of partnership obligations which inure to the benefit of the creditor. Wherefore the judgment entered as to the defendant Levieh must be and is — Reversed.