Page images
PDF
EPUB

the defendant, in consideration of working a lighter, Partners in should receive half of her gross earnings, while the owner was to receive the other half, does not make defendant liable, as a partner, for repairs (e); for this is only a mode of paying him wages for his labour, and is distinguished from a participation of profits and loss(/). So, an agreement by a sailor to receive, by way of wages, a certain proportion of the produce of the voyage, does not constitute him a partner (g).

II. How the Liability may be determined. Where parties have contracted the legal relation Notice of

. . o i dissolution.

of partnership, they must give notice of the dissolution in order to get rid of the partnership liability^). It is said that the publication of the dissolution in the Gazette would be a sufficient notice to all strangers, without proof that they have seen it(i); at all events to persons who have not previously had dealings with the firm (A). If,

(e) Dry v. Bus-well, 1 Campb. 329.

(f) Per Lord Ellenborough, C. J., id. 330; see per Lord Ellenborough, Mair v. Glennie, 4 M. & S. 244.

(g) Wilkinson v. Frazier, 4 Esp. 182. And see Wish v. Small, 1 Campb. 331, n.; Rex v. Hartley, Russ. & Ry. Cr. Ca. R. 139; Rex v. Hoggins, id. 145. See per Best, C. J., Whittington v. Herring, 3 M. & P. 48.

(h) Gorham v. Thompson, Peake, 42; Jenkins v. Blizard, 1 Stark. N. P. C. 418; Parkin v. Carruthers, 3 Esp. 248.

(i) Wright v. Pulham, 2 Chit. Rep. 121. But see Graham v. Hope, Peake, 154; Godfrey v. Macauley, id. 209, n. (3rd Ed.)

(k) Godfrey v. Turnbull, 1 Esp. 371. If notice can be proved

Ceuaiiunof after notice of dissolution published in the Gazette,

liauiliiy. *

the name of the retired partner be used with his consent, he may become liable upon subsequent contracts (/); for the partnership will be considered in law as still continuing, on the same ground that nominal partners in general are deemed liable. But a retired partner will not be liable, if his name has been used without his consent (m); nor, if it be used merely for some specific and temporary purpose (n). Again, if the retired partner continue to participate in the profits, the partnership will not, in reference to third parties, be deemed to be at an end(o). Notice of Although a general trading partnership may not partnenlUp. have actually existed, yet if a party has once held himself out as a partner, and incurred the responsibilities, he will continue liable until he has done some overt act to rid himself of the liability (//). But, where the seller has notice that the party has disclaimed the partnership, he cannot afterwards Cessation of

to have been received through advertisement or otherwise, it does not seem necessary to prove publication of the dissolution in the Gazette; Booth v. Quin, 7 Price, 193. A dormant partner need not give notice of his retirement to save his liability in respect of persons who never knew that he was a partner; Carter v. Whalley, 1 B. & Ad. 11. Supra, p. 369.

(I) Williams v. Keats, 2 Stark. N. P. C. 290; Brown v. Leonard, 2 Chit. Rep. 120.

(m) Newsome v. Coles, 2 Campb. 617.

(«) M'lver v. Humble, 16 East, 169.

(«) JVi/son ex parte, Buck, 48.

(p) Doubleday v. Muskett, 4 M. & P. 750 ; S. C. 7 Bingh. 110; Goode v. Harrison, 5 B. & A. 147.

', i • / x liability.

charge him(^).

The dissolution of partnership will not in general Effect of affect prior transactions (r); yet an express or implied assent on the part of the parties interested may bar their right against the retired partner. Thus, where the partnership is dissolved after the order for the goods is given, but before the arrival of the consignment, and the remaining partner afterwards receives the goods, for the price of which the vendor takes his sole acceptance, the vendor cannot afterwards support any claim against the retired partner (i). So, if the vendor agree to accept, in lieu of the partnership debt, a bill of exchange accepted only by the partner still carrying on the business, or other similar security, so as to imply that he accepts the remaining partner as his sole debtor,—such agreement will afford a defence, by way of accord and satisfaction, to an action brought by the vendor against the retired partner (t). It has been decided, indeed,

(j) Minnit v. Whitney, 5 Vin. Abr. 244; Willis v. Dyson, 1 Stark. N. P. C. 164. Coll. Partn. 214.

(r) Per Heath, J., Wood v. Braddick, 1 Taunt. 105; see Ault v. Goodrich, 4 Russ. 430.

(s) Harris ex parte, 1 Madd. 583. See Wells v. Ross, 7 Taunt. 403; Pinder v. Wilks, 5 Taunt. 612; S. C. 1 Marsh. 248.

(0 Thompson v. Pcrcival, 5 B. & Ad. 925; S. C. 3 Nev. & Man. 167; Evans v. Drummond, 4 Esp. 92. See Reed v. White, 5 Esp. 122; 2 Stark. N. P. C. 178; 2 B. & A. 216.

Cessation of that uiiless some fresh security has been given, so

I abi itv. J _

as to make the substituted debt preferable in some respect to the original debt, the promise by the creditor to exonerate the retiring partner is without consideration(u). But some doubt has recently been thrown upon the cases which uphold this doctrine, by the language and decision of the Court of King's Bench(.r): "Many cases may be conceived in which the sole liability of one of two debtors may be more beneficial than the joint liability of two, either in respect of the solvency of the parties, or the convenience of the remedy; and whether it was actually more beneficial in each particular case cannot be made the subject of inquiry"(^). Yet mere knowledge of the dissolution of partnership and dealing with the new firm, are not sufficient to discharge the liability of the retired partner: some act is necessary on the part of the creditor to show distinctly that he agrees to substitute the liability of the continuing partners for that of the old firm(?).

(») Lodge v. Dicas, 3 B. & A. 611; David v. EUke, 5 B. & C. 196, S. C. 1 C. & P. 368; Heathy. Perdoal, 1 P. Wins. 682.

(x) Of the case of David v. EUke, the Court observed,—" that decision, on consideration, is not altogether satisfactory to us;" 5 B. & Ad. 933.

(_v) Per Lord Dtnman, C. J., delivering the judgment of the Court in Thompson v. Perckal, 5 B. & Adol. 933. See S. C. 3 Nev. & M. 167.

(z) Rinnan v. Riruan, 4 Tyrwh. 491; S. C. 2 Cr. & Mees.

CHAP. II.

RIGHTS AND LIABILITIES OF VENDOR IN RESPECT OF
SURETIES.

Section I.—Of the sufficiency of the Agreement, under the Fourth Section of the Statute of Frauds.

By the Statute of Frauds it is enacted (a), "that Guaranty

ill i i niust ^'"

"no action shall be brought whereby to charge the writing.

"defendant upon any special promise to answer

"for the debt, default or miscarriage, of another

"person; unless the agreement upon which such

"action shall be brought, or some memorandum

"or note thereof, shall be in writing and signed by

"the party to be charged therewith, or some other

"person thereunto by him lawfully authorized."

The first consideration is, what agreements are

within the statute;—and the second, what is a

sufficient note or memorandum to satisfy the

statute.

I. What Agreements are within the Statute.

In general, any promise or agreement which in whatagree

. . , , i , i . , , ment within

substance amounts to an undertaking to guarantee t|lc statutc.

(a) 29 Car. II. c. 3, s. 4.

« PreviousContinue »