Wright v. Herrick

128 Mass. 240 | Mass. | 1880

Endicott, J.

The facts in this case, though substantially the same, differ in some respects from those disclosed when the case was last before us. 125 Mass. 154.

It appears that, in the autumn of 1872, Henry Phillips purchased goods of Plumstead, and informed him that the business was his, and would be carried on by William W. Phillips in his name. It was not distinctly stated in the bill of exceptions, but it is to be inferred, that William W. Phillips had authority to use, and did use, his name in the purchase of goods. In the spring of 1873 the business was transferred to William W. Phillips and Edward Martin, who had formed a partnership to carry it on, and the authority of William. W. Phillips, as agent, was revoked, and he was directed by Henry Phillips not to use his name. After this, Henry Phillips had no connection with, or knowledge of, the business, and did not know in what name it was carried on by William W. Phillips and Martin. The new firm carried on the same business as Henry Phillips. Of this change Plumstead had no notice, and, without any knowledge of the change, continued to sell goods to the new firm, and charged them to Henry Phillips. Whether Henry Phillips gave notice of this change to the plaintiffs, or to other persons who had sold goods to him does not appear, but it is evident that William W. Phillips and Martin continued to use his name in carrying on their partnership business in the same manner as it had been carried on before; for it is stated in the bill of exceptions that the debts of the plaintiffs and of Plumstead, on which their judgments were obtained, were contracted in the name of Henry Phillips, who had no interest in the attached goods, which was not known to Plumstead. It is fairly to be inferred from this statement, that they were sold to both on the credit of Henry Phillips, and it was so stated in the former opinion; and the plaintiffs cannot well deny that William W. Phillips and Martin carried on business under the partnership name of Henry Phillips, for they are so described in the writ upon which their attachment was made. The goods were sold by Plumstead in good faith to the firm on the credit of Henry Phillips, and were the same that were attached and sold by the defendant’s deputy.

Upon these facts and findings, we cannot say that the court below was bound, as matter of law, to give the ruling requested. Having refused to give that ruling, the court might well find for the defendant. Exceptions overruled.