Groves v. Wilson

168 Mass. 370 | Mass. | 1897

Barker, J.

Limited partnerships are regulated in this Commonwealth by' the provisions of Pub. Sts. c. 75, and of St. 1887, c. 248. By a clause of Pub. Sts. c. 75, § 3, if the name of a special partner was used in the firm name, he was made liable as a general partner, unless the name of the special partner so used was his surname, and was also the surname of a general partner. But the limited partnership in which the defendant Wilson was a special partner, and in the name of which his surname appeared, was formed after the passage of St. 1887, c. 248, the first section of which allows such a partnership which succeeds to the business of a former firm to adopt and use the name of such firm, instead of the name prescribed by Pub. Sts. c. 75, § 3, with the consent of the members of the former firm, which consent was given in the present case.

The plaintiff contends that, while the later statute made it lawful for the new firm to have the name of the old, yet the provision of the former statute making the special partner whose name appeared in the name of the limited partnership liable as a general partner was not specifically repealed, and makes the defendant Wilson liable as a general partner.

The language of St. 1887, c. 248, is general, and includes the case of a limited partnership formed to succeed to the business of a former firm, where the same persons compose the two firms, and one or more of them become special partners in the new firm. We must take this permission of St. 1887, c. 248, § 1, with the fourth section of the same statute, amending Pub. Sts. c. 75, § 12,.as to the liability of special partners, and with the fifth section repealing so much of Pub. Sts. c. 75, as is inconsistent with St. 1887, c. 248. The result is, that when the use of the name of a special partner in the name of a limited partnership is authorized by St. 1887, c. 248, § 1, there is a plain implication in the fourth section of that statute that the special partner is not liable as a general partner. This implication is to be given effect by holding that the provisions of Pub. Sts. c. 75, § 3, are in that respect modified by the later statute, the repeal extending to such cases, but leaving the provision of Pub. Sts. c. 75, § 3, to operate in cases where the use in the name of the limited partnership of the name of a special partner is not authorized by the two statutes construed together.

Judgment affirmed.