6 Neb. 322 | Neb. | 1877
In the court below the defendants in error brought action against the plaintiffs in error and one O. M. Carter, to recover on an account for feed sold and delivered to them — alleging that from the first to the thirtieth day of March, 1875, the defendant Wiggenhorn. and said Carter were partners doing business, and during that time they sold the feed to plaintiffs, and that on. the first day of April, O. M. Carter sold and transferred his interest in said account to defendant Green. O. M. Carter pleaded a denial, and afterwards, by leave of the court, withdrew the same, and filed a general demurrer, which the court
It will he observed that in effect the new matter set up in the answer is in the nature of an action for a breach of the contract alleged to have been originally made between plaintiffs in error and O. M. Carter; and the question for consideration is, does this pleading state facts sufficient to constitute a cause of action against the
The doctrine is well established that an incoming partner is not liable for the debts incurred, nor upon contracts made before he entered the partnership, unless such liability is created by express contract, based upon a good consideration; and before the new firm can be made liable in any such case there must be a novation, and the new contract must receive the consent of all the parties, and must have the effect to rescind and extinguish the original debt or contract, and create a new liability of debtor and creditor, or of contractors between the creditor or contractor and the new firm, and such new contract must be founded on some good • consideration moving to the new firm. Nor is the mere receipt of money by the new
In Kirwan v. Kirwan, 2 Cr. & M., 617, A. had an account with B. & Co. During the time A. dealt with the firm, all the partners retired except 0., who formed a partnership with K. A’s account was transferred from the books of the old to those of the new firm, and the balance was struck annually as before. A.’s administrator brought suit against the quondam partners and O. to recover the balance, and the quondam partners contended that the responsibility had shifted to O. & K., and the payments made by the new firm amounted to evidence that N. intended 'to take the debt on him. Held, That no inference o.f that sort could be drawn in the absence of proof of A.’s assent to the substitution of K. as his debtor for the original partners; and there was nothing to show that K. undertook to answer for the debts of the old firm, and the probabilities were that he would not
The judgment of the district court must be affirmed.
Judgment Affirmed.