87 Ky. 525 | Ky. Ct. App. | 1888
delivered the opinion of tiie court.
To an action of assumpsit filed by tlie appellants against William Jones, J. W. Jones, W. T. B. South, J. H. Bowen, D. M. Bowen and Gr. W. Craddock, as partners doing business under the firm name of Jones & Bowen, D. M. Bowen denied that he was a member of said firm at the time tlie account Sued on was created. Gr. W. Craddock admitted that he was a dormant member of said firm “during the time intervening between the first of August, 1880, and the twenty-seventh of April, 1881,” at which latter date he withdrew from said firm, and that the account sued on was created after his withdrawal from said firm; that the appellants did- not know that he was ever a
The appellants, in their reply, alleged that, prior to Gr. W. Craddock’s withdrawal from the firm, they knew that he was a member of it; that after acquiring such knowledge, and before his withdrawal, they sold the firm goods ; that they had no notice of his withdrawal from the firm, and they thereafter sold the firm goods under the belief that he was a member, etc. Gr. W. Craddock’s rejoinder put in issue these allegations.
It is clearly established that Craddock withdrew from the firm on the twenty-seventh .of April, 1881; that he gave no notice to the appellants of his withdrawal; that the goods, the price of which the appellants seek to recover, were sold to the firm of Jones & Bowen after the withdrawal of Craddock; that the appellants sold to the firm of Jones & Bowen goods, from time to time, during the time that Gr. W. Craddock was a member of the firm.
- The appellants’ reply to the answer of D. M. Bowen, and the administrator’s rejoinder thereto, D. M. Bowen having died intestate since filing his answer, involve about the same issue as that made between appellants and Craddock.
It is established that D. M. Bowen was a member of the firm, and withdrew from it about the same time that Gr. W. Craddock did.
The jury having found for Gr. W. Craddock and D. M. Bowen’s administrator upon the issues joined, and judgment having been rendered accordingly, the case is here upon the appeal of the appellants.
Instruction “A,” given for the appellee, Craddock,
A dormant partner is liable for the partnership debts contracted during the time that he was a member of the firm, upon the ground of agency; he is liable on any contract madé, within the scope of the partnership business, by the ostensible partner, because he is taken to have adopted the firm name as his own for the purpose of such contracts.
So, when such contracts are made in the firm’s name by one of the ostensible partners, the firm name does not represent the names of the ostensible partners alone, but that of the dormant partner also, which name the dormant partner authorizes the ostensible partner to use in reference to all matters arising within the scope of the partnership business during his connection with it as such member. When he
By the formation of a partnership, each member, unless expressly restricted, authorizes the other to act as his agent within the scope of the partnership business, and. the act of each, within such scope, is for himself as principal, and for the other members, as their agent; and when one member makes a contract with a third person in behalf of his 'firm, and within the scope of the partnership business, he does so in behalf of himself as principal and as agent of his associates: Although one of the members withdraws from the firm, he, as to such persons as theretofore dealt with the firm with the knowledge that he was a member, is liable for any contract that the remaining member may make, in the name of the firm, with such persons, unless they had, in some way, actual notice of the withdrawal of the member; as to such
For the foregoing, reasons, the last clause of the instruction, to wit: “And extended the credits to them upon the faith of their belief that Craddock was still a member of that firm,” was misleading and erroneous. For, if the appellants' dealt with the firm of Jones & Bowen while Craddock was a member of it, with the knowledge that he was a member, and after his withdrawal they, not having notice of his withdrawal, sold the firm the goods mentioned under the belief that he was still a member of it, then he is liable to them for the price.
The foregoing views apply to the administrator of D. M. Bowen. D. M. Bowen, in his answer, having denied that he was a partner, the burden was upon
The judgment of the lower court is reversed, and the case is remanded, with directions to grant the appellant a new trial, and for further proceedings consistent with this opinion.