Vietor v. Spalding, 202 Mass. 234

Vietor v. Spalding

202 Mass. 234 | Mass. | 1909

Braley, J.

The defendant Atwood, being a member of a mercantile partnership composed of himself and the other defendants, to which from time to time the plaintiff firm sold merchandise in the usual course of trade, withdrew therefrom without giving to them notice of his retirement. In ignorance of his withdrawal, the plaintiffs, having sold goods to Atwood’s *236former associates by whom the business was continued without any external change, seek in this action to hold him liable for the price jointly with them. It may be assumed that, before the change the plaintiffs transacted business with the firm on the faith of having Atwood’s credit to look to in payment of debts. If commercially bound by the firm name while a member, he remained bound under the same designation until the plaintiffs, who in good faith dealt with the apparent partnership, had been actually notified of his retirement. Stimson v. Whitney, 130 Mass. 591. Elkinton v. Booth, 143 Mass. 479.

In bar of this liability it is urged first that before the present indebtedness was contracted the constituency of the plaintiff firm had been changed by the admission of new members, and that, as Atwood was not then a member of the defendant firm, he could not be held, because credit could not have been extended on the strength of his membership. But the plaintiff firm had undergone no internal transformation which destroyed its rights as a creditor, for in contemplation of law this defendant still held himself out as associated with his former partners. Nor was he exonerated even if uninformed of this change. A partnership like any undisclosed principal may enforce in the name of its members the collection of bills receivable, even if the contract was made by one of their number. It is no defense that they were unknown to the debtor, or that he was ignorant of the firm title or existence, although where the business of the firm has been ostensibly conducted in the name of one of the partners, the debt or claim, for purposes of set-off, recoupment, and payment, may be treated as his sole property. Wood v. O'Kelley, 8 Cush. 406. Scott v. McKinney, 98 Mass. 344, 348. Wright v. Herrick, 125 Mass. 154. Upon the evidence the defendants traded with the plaintiff partnership as it then was constituted.

It is urged next that the plaintiffs should be held chargeable with notice of the withdrawal, because of the knowledge of this fact by Mr. Knowlton, an attorney at law, who at the time was acting as their general counsel. But as to this issue a full examination of the record shows that the testimony in all essential particulars is the same as at the former trial where it was decided that the knowledge of the attorney was not binding *237on the plaintiffs, as he was not their agent for this purpose. Vietor v. Spalding, 199 Mass. 52.

The defendant’s liability having been established by the answers returned by the jury to the questions submitted to them, a verdict for the plaintiffs was ordered rightly.

Exceptions overruled.