72 P. 832 | Cal. | 1903
This is an appeal from a judgment on a bill of exceptions. The facts are substantially as follows: A. B. Perry & Co., a copartnership composed of Alvan B. Perry and W. P. Fuller & Co., a corporation, did their banking business with defendant, a banking corporation, and had a deposit account with defendant. On. February 14, 1899, the said copartnership had on deposit with defendant
If the money on deposit in the name of A. B. Perry & Co. belonged to a copartnership doing business under the name and style of A. B. Perry & Co., it is clear that defendant had no right to appropriate the deposit for the purpose of paying the individual indebtedness of A. B. Perry. It had made the loan to Perry individually, and had taken his unsecured note for the amount. It knew that it had two different names on its books, and that one, at least apparently, was that of a firm or association of individuals. The words “A. B. Perry & Co.” were sufficient, upon their face, to put defendant upon inquiry. And that defendant knew it was dealing with a different person from Alvan B. Perry further appears from the fact that in November, 1898, it loaned the sum of $3,000 to and took the note of A. B. Perry & Co. for the amount. This note was paid by A. B. Perry & Co., and not by Alvan B. Perry. Defendant had no agreement whereby it had any lien or claim on the funds of A. B. Perry & Co. It received the deposit under that name. It cannot, of its own volition, repudiate the obligation by showing that the name was that of something having no legal existence. It is not necessary to decide the question as to whether or not a corporation can legally enter into a copartnership. It will be sufficient to decide that question when it is properly raised by someone who is interested and who has the right to raise it. There is no doubt, in case this suit had been brought by the copartnership during the lifetime of Perry, the defendant would have been estopped from denying that it was a copartnership. Defendant, having voluntarily treated it as such for the purpose of receiving its deposits and business, will be compelled to treat it as such for the purpose of repaying such deposits: Defendant’s attorneys, in their closing brief, very frankly and fairly admitted this proposition, and say: “If Perry were alive, and had joined with W. P. Puller & Co. as plaintiff, or had joined in an assignment of this claim, we frankly and fully admit that the question as
The defendant was therefore estopped during the lifetime of Perry from making any such defense as it is attempting to make here. It was so estopped at the time it made the transfer of the partnership account to the payment of the note of Alvan B. Perry. Then the question arises as to whether or. not such estoppel continued after the death of Perry, and as to his surviving partner. The heirs and administrators of Perry succeed to his rights, and therefore are in privity with him: Bigelow on Estoppel, 5th ed., pp. 148, 347. In such case the estoppel applies to the privies in estate: Bigelow on Estoppel, 5th ed., pp. 142, 143. The corporation of W. P. Puller & Co. Avas in fact a copartner, whether it was so in a legal sense or not. It had acted as such. Perry, in his lifetime, by express agreement, had made it such. He was estopped by his agreement from denying that it was such. Defendant had, by its conduct, treated it as such. Therefore, Avhen Perry died the corporation Avas a surviving partner in fact. Whether it was so legally or otherwise, it certainly was so as a matter of fact. As such surviving partner, Code of Civil Procedure, section 1585, gave it the right “to continue in possession of the partnership, and to settle its business .... and account with the executor or administrator, and pay over such balances as may from time to time be payable to him in right of the decedent.” The estoppel continued after the death of Perry as to his heirs and legal representatives, as to the condition of affairs that had been brought about by the surviving partner, and to any balance that might be due deceased from the assets of the copartnership. On the other hand, the assets were liable, for the partnership debts. They were also liable for any balance due the surviving partner. The money left in the bank may have been the money of the surviving partner. Its acts were not ultra vires as to the deceased partner, nor as to defendant. None of its stock
The judgment is affirmed.