91 Wis. 90 | Wis. | 1895
The familiar and well-settled rule is that a dissolution of the copartnership by act of the parties, whether a complete discontinuance of the concern or the retirement of a single partner or addition of a member, does not affect the outside world unless proper notice is given; that actual notice must be brought home to former customers or those who are creditors by having dealt with it, but notice by publication is sufficient as to all others. 2 Bates, Partn. § 606; 1 Lindley, Partn, *221. The plaintiff must be regarded as a former customer or dealer with the firm of J. D. Putnam & Co., and, as such, entitled to actual notice, she having loaned them money, though but in a single instance, for which she was then their creditor. She comes within the reason of the rule. 2 Bates, Partn. § 613; Buffalo C. Bank v. Howard, 35 N. Y. 500; Lyon v. Johnson, 28 Conn. 1; Wardmell v. Haight, 2 Barb. 553; Vernon v. Manhattan Co. 22 Wend. 191; National Bank v. Norton, 1 Hill, 577.
The ground upon which notice of the discontinuance of the concern by act of the parties, or the retirement or addition of a member, is required, is stated as arising from a species of estoppel to deny the continuance of the agency of each of the partners for the firm, or on the ground of negligence whereby credit is given, or from a presumption of a continuance of the former relations, giving tó one who once knows of the existence of a firm the right to assumef
The plaintiff saw the published notice, and about eighteen months afterward she took the note upon which she sues in lieu of the J. D. Putnam & Co. note, and the question is whether the published notice and the manner in which the new note was executed can be fairly held to constitute notice to the plaintiff that the defendant Alfred, J. Goss had ceased to be a partner in the concern. If the change in the name was such as to indicate that he was no longer a member, there would certainly be no ground for holding him liable. In the firm name of J. D. Putnam & Co., Alfred J. Goss was mentioned under the ambiguous and uncertain designation “ & Co.” The notice affirms that the partnership of J. D. Putnam & Co. is dissolved, and that the “ business will in the future be carried on under the firm name of J. B. Goss & Co.,” who are to settle all claims of the late copartnership. It is fairly evident that a new member, J. B. Goss, has been introduced into the business, and it may fairly be inferred that Putnam had retired. Row, what business was it that in future would be carried on under the
The proposition is laid down that when the change of name is relied on it “must indicate the retirement of the particular partner sought to be held, for otherwise, though it be a dissolution of the identical partnership, it is also notice of a new one, in which all the former members may be presumed to continue.” 2 Bates, Partn. § 623. We regard this rule as eminently practical and just, and it has the sanction of high authority. In Howe v. Thayer, 11 Pick. 91, there was, in effect, a dissolution and the organization of another firm with a different name. The retiring partner, Thayer, was held liable to the former dealers, because the change of name did not indicate that he was the partner going out; and Shaw, 0. J., said: “When a business is carried on by three or more as partners, and one withdraws, or one is added, or both, and notice thereof given, and the business is carried on as before, those as to whom no notice is given must be presumed to hold the same relation to the concern that they did before; and such change furnishes
But it is insisted that the new note was not given by the firm with which the plaintiff had been connected; that that firm had been dissolved, and that there never was in fact any such firm as J. B. Goss & Co. But this contention is met and answered in the case of American L. T. Co. v. Wortendylte, 24 N. Y. 550, in which the rule laid down in Ilowe v. Thayer, supra, is cited and approved. In that case DeNIO, J., says that “ in every case where a partner has withdrawn, and there is a further dealing with the remaining partners under such circumstances as to leave the retiring partner responsible, the contract is not between the creditor and the former firm, but it is with a neve firm, which the creditor has been led to believe still embraced the partner .who has in fact gone out. The bare fact, therefore, of the dissolution of the old firm and the creation of a new one, with which the credit sought to be enforced was had, and which did not embrace one of the old partners, is not conclusive against the plaintiff.” In the present case the notice was to the effect that “ the business will in the future be carried on under
It must be held, we think, that the notice in this case was an assurance or holding out to the plaintiff and former dealers that the business would be carried on under the new name of J. B. Goss & Co. Alfred J. Goss had been described in the firm name J. D. Putnam & Co. as the company, and the fact that the name of J. B. Goss took the place of that of J. D. Putnam was no notice of the withdrawal of Alfred J. Goss, but, upon the principles already stated, was equivalent to ■ a holding out that he still remained in the business and as a member of the firm of J. B. Goss & Co., designated therein in like manner as in the case of the firm of J. D. Putnam & Co., whether any such firm existed or not; so that
By the Court.— Tbe judgment of tbe circuit court is affirmed.