54 Pa. Super. 481 | Pa. Super. Ct. | 1913
Opinion by
The statement of claim avers and the affidavit does not deny that Proper, the appellant, was in fact a partner with one Weller who borrowed the money, to recover which this suit was brought. The loan was made to prose
Nor can the appellant escape the liability incident to the partnership relation on account of the alleged misjoinder in the present action of the personal representative of his deceased partner with himself. Had such objection been promptly made by plea in abatement, or otherwise, an amendment of the record would have readily disposed of the objection. The appellant suffers no harm by reason of the joinder, and it would be an abuse of the rules of pleading to reverse the judgment now on such grounds: Hoskinson v. Eliot, 62 Pa. 393.
We are all of opinion that the affidavits disclose no legal defense to the plaintiff’s, claim, and as a consequence the judgment entered by the court below should not be disturbed.
Judgment affirmed.
SUB BULE FOB MODIFICATION OF JUDGMENT OB FOB A BE ABGUMENT.
Opinion by Head, J., October 10, 1913:
On the defendant’s petition a rule was granted to show cause why the judgment previously entered in this case should not be modified so as to restrict any execution thereon to partnership property or why a reargument should not be ordered.
It is conceded that defendant was a dormant or secret partner in a firm composed of himself and one Weller.
The facts above stated differentiate this case from the line of cases on which the appellant relies, the latest of which is Funk v. Young, 241 Pa. 72. In all of those cases the creditor had notice, actual or constructive, that he was dealing with a partnership and could properly be presumed to have advanced his money or furnished his goods relying on the partnership property or the individual property of those only who bound themselves in the transaction. In cases of dormant partners the principle is thus stated by Mr. Lindley in his Work on Partnership, Vol. 1, page 483: “ As regards dormant partners, it has been seen that they are liable on all contracts entered into on behalf of the firm to which they belong, and whether such a contract is written or unwritten, express or implied, it is clear that a dormant partner may be sued upon it.” In Hill v. Voorhies, 22 Pa. 73, it is said: “It is'now an undoubted and universal proposition, that a dormant partner is in all cases liable for the contracts of the firm during the time that he is actually a partner. (Cases cited). This rule of law would be rendered entirely nugatory if the acceptance of a promissory note from the otensible partners, by one unacquainted with the existence of a dormant partner, precluded the creditor from his action against all who participated in the profits of the partnership.” This doctrine is recognized in Graeff v. Hitchman, 5 Watts, 454; Morrison v. Curry, 43 Pa. Superior Ct. 648; DeTemple v. Rohrbach, 52 Pa. Superior Ct. 455.
Moreover, it is averred and not denied that the osten1sible partner made a purchase of rails for use in the joint business. He borrowed the money to pay one-half the price thereof and gave his note to the present
We are all of the opinion the judgment already entered was fully warranted and the rule to show cause is now discharged.