Goodspeed v. Wiard Plow Co.

45 Mich. 322 | Mich. | 1881

Campbell, J.

Goodspeed and Fales prior to February 13, 1879, were partners in business, and on the 21st day of January preceding the dissolution, Fales, in the name of the firm, but in the absence of Goodspeed, and without his knowledge or authority, gave to an agent of the Wiard Plough Company an order in writing for a large number of articles connected with their business to be shipped on the first day of April thereafter. On the 13th of February the firm was dissolved, and on the same day the agent was informed of the dissolution. The price of the articles ordered was shown to be above $500. On the 15th of February a portion of the articles were shipped, and the remainder, some «arlier and some later than April. All came into the hands •of Fales. There was no proof of any other acceptance of the order than the shipment, unless the agent at the time of receiving the order made some arrangement on the subject, which is not shown.

On a suit against Goodspeed and Fales the court held that the shipment of goods and their reception by Fales bound Goodspeed, and that the fact that the time of shipment was •different from that named in the order made no difference.

We think this was erroneous, and that there was no ground of recovery. A retiring partner is bound by all previous contracts made within the line of the business, but after dissolution he is not bound by any new contract made by his ■copartner.

The order given by Fales made no contract until accepted, and until acceptance^ could at any time be withdrawn.. Inasmuch as the amount of goods exceeded fifty dollars, there •could be no binding contract as against the Wiard Plough Company without either a writing or some act done on the faith of the order. Here there was no proof of acceptance •of the order, in writing, if at all. The shipment of the goods was not made in accordance with the terms of the order, and was not made until the order had been rescinded by notice •of the dissolution. Fales could not waive any of the conditions so as to bind Goodspeed, after the dissolution. The ■sale made was not the sale agreed upon if there was any agreement. The case is therefore doubly defective, in not •showing any valid agreement at all, and in showing a departure from the agreement proposed. Either objection is fatal to a recovery.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.