39 Barb. 283 | N.Y. Sup. Ct. | 1860
Lead Opinion
Upon the first question involved in this case, as to the statute having been complied with by the alleged special partner, by paying in his capital in actual cash, there is no difference of opinion in the court. We all agree that it was no compliance.
The only remaining question arises upon the true construction of the eighth section of the act in regard to special partners. And here I may remark that the equities of any particular case, and the reliance that any creditor may have placed upon the credit of the alleged special partner, are blind guides in the sound interpretation of a general statute, founded upon enlarged principles of public policy. Such considerations are far more calculated to mislead than to enlighten.
We agree that the defendant Chace did not pay in the amount of the cash capital agreed to be contributed by him in order to make him a special partner. The affidavit required by the seventh section to be filed was not true, as to the alleged payment in cash.
These rules are quite familiar, but they are well illustrated in Olcott v. The Tioga Rail Road Company, (20 N. Y. Rep. 210,) in the elaborate points of the counsel for the appellant in that case, and in the case itself.
In the statute under consideration the mode and manner in which a person may become a special partner are carefully pointed out. And it is obviously the general purpose of the statute to make such person a general partner, if he fail to comply with those provisions. In fact it would seem to follow as a matter of course that such person would be a general partner if he failed to comply with the provisions that make him a special partner, though no express declaration to that effect were contained in the statute. It is only by force of the statute that his liability is limited. It is there limited upon his compliance with the provisions which alone make him a special partner. The first section provides that limited partnerships “may be formed upon the terms, with the rights and powers and subject to the conditions and liabilities herein prescribed.” If such provisions are not complied with, it follows, without any declaration to that effect, that the limited partnership is not formed. Now the eighth section says expressly that “no such partnership shall be -deemed to have been formed until a certificate shall have been made, acknowledged, filed and recorded, nor until an affidavit shall have been filed as above directed.” Referring to the affidavit that the capital of the special partner “had been actually and in go'od faith paid in cash.” Is a false affidavit for that purpose better than none ? Is a confessedly false affidavit any substantial compliance with the statute ? Would not-the defendant be estopped from setting up his
But we are not left to reasoning and argument, upon this point. The statute declares, in terms, that “if any false statement be made in such certificate or affidavit/ all the persons interested in such partnership shall be liable” (for what P) “for all the engagements thereof, as general partners.” I am unable to perceive how the legislature could have spoken in plainer or more comprehensive terms. Hot having complied with the statute, the defendant is not a special partner, in any sense or degree; neither as to the duration of the partnership nor any thing else. If not, then the act as to special or limited partners has nothing to do with him. It cannot be claimed that the defendant would be any sort of a special partner, in whole or in part; that he would be half a special partner by having his liability
In some provisions as to liability we have to look to the statute alone for its extent; as where the special partnership is wholly formed and a penalty or liability is imposed for violating some of its provisions as to the conduct of the special partner, that he must not interfere in the general business &c., as in section seventeen, failing to comply with the provisions. But here, in section eight, the special partnership is never formed—the vital part thereof, the cash, was never in. It is scarcely to be believed that the legislature intended to treat the latter case "rtith less rigor than the former.
In every view I can take of this case, of the law of partnerships, of the true construction of this statute, both from its plain terms and its general purpose, as well as from principles of public policy, I am of opinion that the defendant is liable as a general. partner, without limit as to time, except as before expressed; and hence the judgment must be reversed and a new trial granted, with costs to abide the event.
Hogeboom, J. concurred.
Gould, Hogeboom and Peckham, Justices.]
Dissenting Opinion
(dissenting.) Though no special partnership was formed, the printed notice (which was all the notice the plaintiffs had of any such partners, the special partner not being named in the business,) gave to the plaintiffs notice that the partnership, (whatever it was, general or special,) would cease on such a day. And the debt in suit was contracted after that day. So that the plaintiffs had notice that it was not a partnership debt. This is the whole basis of my views that a new trial should not be had.
Hew trial granted.