101 Pa. 233 | Pa. | 1882
delivered the opinion of the court, October 25th 1882.
In delivering the opinion of this court in the case of Reppert v. Colvin, 12 Wr. 248, Mr. Justice Read on p. 252 said: “The law is well settled that after the dissolution of a partnership the partners cease to have any power to make a contract in any way binding on each other. The dissolution puts an end to the authority, and operates as a revocation of all power to create new contracts. Of course a hew-promise of which the original debt is the only consideration, by a partner after the dissolution of the copartnership, will not take the debt out of the statute of limitations so as to make the copartners liable. The exception to this rule is when the partner takes the stock on hand and becomes the liquidating partner, as in the case of Houser v. Irvine, 3 W. & S. 345.” The authority of Smith in that case, says Chief Justice Gibson, “was to settle partnership debts and pay them out of the effects in his hands.”
That this is the well understood law of this Commonwealth cannot be disputed. It has been expressed so many times that a repetition of the authorities is unnecessary. Generally there is but little difficulty in its application to the facts of a given case. In the present case however the facts are somewhat peculiar. The original debt was for a bill of merchandise sold by the plaintiffs to a firm composed of R. M. Waugh, M. J. Jack and E. H. Jack, and called Waugh, Jack & Co. The goods were sold during the year. 1873 and the debt became due on November 3d 1873. On December 11th 1873 the interest of R. M. Waugh in the firm was sold by the sheriff under an execution against him to one Harriett, who immediately
Nor is it necessary that there should be an express and specific appointment of one as liquidating partner. His authority may be inferred Rom acts done in liquidation, with the knowledge and consent of his former partners: Ibid. In the present case there was no evidence that M. J. Jack was a liquidating partner by any express authority to that effect. There was no evidence that he ever settled any other claim than this one, against the old firm, or that he ever undertook or agreed to do so. In fact the firm of Jack & Co. also became insolvent a few months later, in
Consequently no inference of assent to their possession and appropriation of them can be derived from the absence of any dissent on his part. He, of course, was liable for the debt duo the plaintiffs during six years from its maturity, but that was the extent of his involuntary responsibility. If M. J. Jack had at the settlement, given to the plaintiffs a note for the $1,500, in the name of the old firm of Waugh, Jack & Co. there would have been an inference that, so far as he was concerned, he intended to continue the obligation of the old firm, and therefore of Waugh as a member of it. In that event the question would fairly have arisen as to his power to make Waugh liable by such an instrument. But he did not do that, and hence so far as the giving of that note is concerned, the inference would be, not that he intended to preserve Waugh’s liability or that of the old firm, but to substitute for it a new and different liability, to wit, that of the new firm of Jack & Co., of which Waugh was not a member. The plaintiffs were under no obligation to accept such a note, and if they had refused it and insisted upon a note of the old firm it would have been apparent that they intended that the old firm should remain liable. But nothing of that kind took place. If again it had been proved that the alleged payment of $25.21 on account was made in Waugh’s presence and with his knowledge and consent, there would have been some, though not a conclusive, basis, for an inference that he assented to such a continuation of the liability of the old firm as would flow from a payment on account. But there was no such proof, and hence there is no authority for such an inference. As we have seen by the decided cases, the power of one partner to bind another, after dissolution, by either an express or implied promise, is exceptional. The facts which give rise to it must appear in any case where it is claimed to exist. If they do not appear it does not exist and the general rule of non-liability applies and controls. In the present case there was no
In these circumstances there is absolutely nothing, upon which to found any legal obligation on the part of Waugh to pay the debt in suit within six years before suit brought and hence the plea of the statute of limitations was a good plea, and there was no error in the instructions given by the court.
Judgment affirmed.