37 Ill. 76 | Ill. | 1865
delivered the opinion of the court:
This was an action brought by Ball & Griffin against the appellant, Warren, and his co-defendants in the court below, Anderson & Halsey, upon a promissory note, dated December 8, 1858, and alleged in the declaration to have been made by the defendants, as partners, under the name and style of Anderson, Halsey & Go. The appellant and Anderson filed a plea, verified by affidavit, denying the partnership. The plaintiffs replied that in 1857, and prior to the making of the note, the defendants were partners under the above style, and, protesting that they had not dissolved at the time the note was made, averred that the note was made by Halsey, and received by the appellees, without notice of the dissolution. To this replication there was a demurrer by the appellant, which the court overruled, and the appellant abided by his demurrer. This decision is now assigned for error.
The name of the appellant, Warren, did not appear in the firm in whose name this note was given. So far as these pleadings show, he was a dormant partner. The question, then, presented by this replication is, whether these plaintiffs were entitled to notice of the dissolution. That clearly depends upon whether, at the time the note was taken, they knew that Warren had been a member of the firm. Where a person permits his name to appear as member of a partnership, or where, his name not appearing, he is nevertheless known as a partner, he continues liable, after his retirement, for debts contracted to persons who have no notice of such retirement, and who have known.him as a partner, because they may well be supposed to have given credit in consequence of his connection with the firm. But notice of the retirement of a dormant partner is not necessary in order to protect him from liability in .subsequent transactions with persons who have had no knowledge of his connection with the firm, for the evident reason that they can not have given credit in consequence of his supposed liability. These principles are very clearly stated in Story on Partnership, sections 159—160, and are fully sustained by the adjudged cases. They are decisive of the case before us. The replication sets up a partnership prior to the giving of the note, and avers that the plaintiffs had no notice of its dissolution. It appearing that the appellant’s name was not known in the firm, it was wholly immaterial whether the plaintiffs had notice of appellant’s retirement or not, unless they had known him to be a member. Hence the replication is defective in not averring such knowledge. The proof of such an averment, on the trial, can be made, either by showing direct personal knowledge on the part of the plaintiffs, or by evidence that the connection of Warren with the partnership had been matter of such general publicity, as to justify the inference that plaintiffs were cognizant of it.
The demurrer to the replication should have been sustained.
Judgment reversed.
