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have been qualifications annexed to the general principle; for after the dissolution of a partnership, the power of the members to bind the firm ceases, and an acknowledgment of a debt will not, of itself, be sufficient, inasmuch as that would, in effect, be keeping the firm in life and activity. (b) To give that acknowledgment any force, the existence of the original partnership debt must be proved, or admitted aliunde; and then the confession of a partner, after the dissolution, is admissible, as to demands not barred by the statute of limitations. (c) Of late, however, the decision in Whitcomb v. Whiting has been very much questioned in England; and it seems now to be considered as an unsound authority by the court which originally pronounced it. (d) And we have high authority in this country for the conclusion, that the acknowledgment by a partner, after the dissolution of the partnership, of a debt barred by the statute of limitations, will be of no avail against the statute, so as to take the debt out of it as to the other partner, on the ground that the power to create a new right against the partnership does not exist in any partner after the dissolution of it; and the acknowledgment of a debt, barred by the statute of limitations, is not the mere continuation of the original promise, but a new contract, springing out of and supported by the original consideration. This is the doctrine, not only in New York, Indiana, Pennsylvania, Tennessee, Georgia, and Louisiana, but in the Supreme Court of States; (a) and the law in England and in

* 51 the United

1 Bailey (S. C.), 522; Simpson v. Geddes, 2 Bay, 533; Fisher v. Tucker, 1 M'Cord Ch. 190; Fellows v. Guimarin, Dudley (Ga.) 100; Brewster v. Hardeman, ib. 140; Greenleaf v. Quincy, 3 Fairfield, 11.

(b) Hackley v. Patrick, 3 Johns. 536; Walden v. Sherburne, 15 id. 409; Baker v. Stackpole, 9 Cowen, 420; Shelton v. Cocke, 3 Munf. 191; Chardon v. Colder, 2 Const. (S. C.) 685; Fisher v. Tucker, 1 M'Cord Ch. 177, 179; Walker v. Duberry, 1 A. K. Marsh. 189; Lachomette v. Thomas, 5 Rob. (La.) 172.

(e) Smith v. Ludlows, 6 Johns. 267; Johnson v. Beardslee, 15 id. 3; Cady v. Shepherd, 11 Pick. 400; Brisban v. Boyd, 4 Paige, 17; Greenleaf v. Quincy, 3 Fair field, 11.

(d) Brandram v. Wharton, 1 B. & Ald. 463; Atkins v. Tredgold, 2 B. & C. 23. But in Perham v. Raynall, 9 Moore C. B. 566, the authority of the case of Whitcomb v. Whiting is reinstated; and it was held to contain sound doctrine, to the extent that an acknowledgment within the six years, by one of two makers of a joint and several note, revives the debt against both, though the other had signed the note as a surety. Pease v. Hirst, 10 B. & C. 122; Pritchard v. Draper, 1 Russ. & Myl. 191, s. P.

(a) Bell v. Morrison, 1 Peters, 351; Levy v. Cadet, 17 Serg. & R. 126; Searight

1

this country seem equally to be tending to this conclusion. (b) 1 But there is a distinction between an acknowledgment which goes to create a new contract, and the declarations of a partner, made after the dissolution of the partnership, concerning facts which transpired previous to that event; and declarations of that character are held to be admissible. (c)

If, however, in the terms of dissolution of a partnership, one partner be authorized to use the name of the firm in the prosecution of suits, he may bind all by a note for himself and his partners, in a matter concerning judicial proceedings. (d)

(8) Dealing on Separate Account. The business and contracts of a partner, distinct from and independent of the business of the partnership, are on his own account; and yet it is said

v. Craighead, 1 Penn. 135; Yandes v. Lefavour, 2 Blackf. (Ind.) 371; Hopkins v. Banks, 7 Cowen, 650; Baker v. Stackpoole, 9 id. 420; Brewster v. Hardeman, Dudley, 138; Lambeth v. Vawter, 6 Rob. (La.) 128; Van Wyck v. Norvell, 2 Humph. 192; [ib. 166, 529;] Bispham v. Patterson, 2 McL. 87. In this last case, Mr. Justice McLean considers the English rule, that the admission of one partner, made after the dissolution of the partnership, and even of a payment made to him after the dissolution, is good evidence to bind the other partners, to be well settled and upon sound principles; but he yields his better judgment to the contrary doctrine, settled by the weight of American authority.

(b) This is contrary to a decision in North Carolina, in M'Intire v. Oliver, 2 Hawks, 209, and recognized in Willis v. Hill, 2 Dev. & Bat. 234, and in Walton v. Robinson, 5 Ired. 341; but it may now be considered as the better and more authoritative, and perhaps the settled doctrine. By the English statute of 9th May, 1828, entitled "An act rendering a written memorandum necessary to the validity of certain promises and engagements," it is declared, in reference to acknowledgments and promises offered in evidence to take cases out of the statute of limitations, that joint contractors, or executors, or administrators of any contractor, shall not be chargeable in respect of any written acknowledgment of his cocontractor, &c., though such cocontractor, his executors, &c., may be rendered liable by virtue of such new acknowledgment or promise. The like law in Mass. R. S. c. 120, sec. 14, Gay r. Bowen, 8 Met. 100; Cady v. Shepherd, 11 Pick. 400.

(c) Parker v. Merrill, 6 Greenl. 41; Mann v. Locke, 11 N. H. 246. (d) Burton v. Issit, 5 B. & Ald. 267.

1 Van Keuren v. Parmalee, 2 Comst. 523; Shoemaker v. Benedict, 1 Kern. (11 N. Y.) 176; Payne v. Slate, 39 Barb. 634; Reppert v. Colvin, 48 Penn. St. 248; Exeter Bank v. Sullivan, 6 N. H. 124; Pennoyer v. David, 8 Mich. 407; Myatts v. Bell, 41 Ala. 222. See Bateman v. Pinder, 3 Q B. 574. But a partial payment to a creditor without notice of the dissolution has been held to take the case

out of the statute. Tappan v. Kimball, 10 Fost. (30 N. H.) 136; Sage v. Ensign, 2 Allen, 215; Myers v. Standart, 11 Ohio St. 29. And Whitcomb v. Whiting, sup. 50, seems still to be followed in Connecticut. Bissell v. Adams, 35 Conn. 299, and earlier cases cited; Beardsley v. Hall, 36 Conn. 270.

As to the next proposition in the text, see Ide v. Ingraham, 5 Gray, 106.

that one partner cannot be permitted to deal on his own private account in any matter which is obviously at variance with the business of the partnership, and that the company would be entitled to claim the benefit of every such contract. (e)2 The object of this rule is to withdraw from each partner the temptation to bestow more attention, and exercise a sharper sagacity in

respect to his own purchases and sales, than to the concerns * 52 of the partnership in the same line of business. The rule is evidently founded in sound policy; and the same rule is applied to the case of a master of a vessel, charged with a cargo for a foreign market, and in which he has a joint concern. (a) But a person may become a partner with one individual of a partnership, without being concerned in that partnership; for though A. & B. are mercantile partners, A. may form a separate partnership with C., and the latter would have no right to a share in the profits, nor would he be bound for the engagements of the house of A. & B., because his partnership would only extend to the house of A. & C. (b) But such involved partner

(e) Pothier, Traité du Con. de Soc. n. 59; Glassington v. Thwaites, 1 Sim. & Stu. 133; Featherstonhaugh v. Fenwick, 17 Ves. 298; Burton v. Wookey, Mad. & Geld. (6 Mad.) 367; Russell v. Austwick, 1 Sim. 52; Fawcett v. Whitehouse, 1 Russ & My. 132, 148. In the case from Vesey, one partner had secretly, for his own benefit, obtained a renewal of the lease of the premises where the joint trade was carried on, and the lease was held to be a trust for the benefit of the copartnership. See infra, iv. 371.

(a) Boulay-Paty, Cours de Droit Com. ii. 94. [See Gardner v. M'Cutcheon, 4 Beav. 534.]

(b) Ex parte Barrow, 2 Rose's Cases in Bankr. 252; Glassington v. Thwaites, 1 Sim.

2 Bentley v. Craven, 18 Beav. 75; Love v. Carpenter, 30 Ind. 284; Herrick v. Ames, 8 Bosw. 115. An injunction was granted in England v. Curling, 8 Beav. 129; Marshall v. Johnson, 33 Ga. 500.

As to leases, see Clegg v. Fishwick, 1 Macn. & G. 294; Clements v. Hall, 2 De G. & J. 173; Anderson v. Lemon, 4 Seld. 236.

For the limits of the doctrine, see Lock. Lynam, 4 Ir. Ch. 188; Wheeler v. Sage, 1 Wall. 518; Westcott v. Tyson, 38 Penn. St. 389; American Bank Note Co. v. Edson, 1 Lans. 388; 56 Barb. 84.

1 Sub-partners. - Mr. Lindley thinks that before the case of Cox v. Hickman, ante, 25, n. 1, a subpartner might perhaps

have been liable to the creditors of the
principal firm by reason of his participa
tion in the profits thereof, but that since
that decision such a liability cannot attach
to him. See Fairholm v. Marjoribanks,
Mor. Dec. (Scotch), 14558; 3 Ross. L. C.
on Comm. Law, 697 (published in Law
Library). Where the rule established in
Massachusetts prevails, ante, 25, n. 1, the
liability has been thought to exist. Fitch
v. Harrington, 13 Gray, 468.
But see
Story on P., § 70, Gray's note; Reynolds
v. Hicks, 19 Ind. 113.

As to suits between firms with a com.
mon member, see Cole v. Reynolds, 18
N. Y. 74; 5 Am Law Rev. 47; Rogers v.
Rogers, 5 Ired. Eq. 31.

ships require to be watched with a jealous observation, and especially if they relate to the business of the same kind, inasmuch as the attention of the person belonging to both firms might be distracted in the conflicts of interest, and his vigilance and duty in respect to one or the other of the concerns become much relaxed. Partners are bound to conduct themselves with good faith, and to apply themselves with diligence in the business of the concern, and not to divert the funds to any purpose foreign to the trust. (c)

III. Of the Dissolution of Partnership. If a partnership be formed for a single purpose or transaction, it ceases as soon as the business is completed; and nothing can be more natural and reasonable than the rule of the civil law, that a partnership in any business should cease when there was an end put to the business itself. (d) If the * partnership be for a definite *53 period, it terminates of course when the period arrives. But in that case, and in the case in which the period of its duration is not fixed, it may terminate from various causes which I shall now endeavor to explain, as well as trace the consequences of the dissolution.

A partnership may be dissolved by the voluntary act of the parties, or of one of them, and by the death, insanity, or bank

& Stu. 124, 133. Lord Eldon there refers to the case of Sir Charles Raymond, as containing the doctrine. It was also the doctrine of the civil law, and is the law of those countries which follow the civil law. Socii mei socius, meus socius non est. Dig. 17. 2. 20; Pothier, Traité du Con. de Soc. n. 91; Ersk. Inst. ii. 6, 3, sec. 22; Bell's Comm. ii. 654; Civil Code of Louisiana, art. 2842. There can be no doubt, said Lord Ch. J. Eyre, 1 Bos. & P. 546, that, as between themselves, a partnership may have transactions with an individual partner, or with two or more of the partners, having their separate estate engaged in some joint concern, in which the general partnership is not interested; and that they may convert the joint property of the general partnership into the separate property of an individual partner, or into the joint property of two or more partners, or e converso. See, also, Gow on Partn. 75; Collyer on Partn. 175-178; Story on Partn. [§ 219.]

(c) Stoughton v. Lynch, 1 Johns. Ch. 470; Long v. Majestre, ib. 305; Fawcett v. Whitehouse, 1 Russ. & My. 132; Collyer on Partn. 96. If the partnership suffers loss from the gross negligence, unskilfulness, fraud, or wanton misconduct of a partner, in the course of their business, or from a known deviation from the partnership articles, he is ordinarily responsible over to the other partners for all losses and damages sustained thereby. Maddeford v. Austwick, 1 Sim. 89; Pothier, de Société, n. 133; Story on Partn. [§§ 169–173.]

(d) Inst. 3. 26. 6. Extincto subjecto, tollitur adjunctum. Pothier, Traité du Con. de Soc. n. 140-143, illustrates this rule in his usual manner, by a number of plain and familiar examples. 16 Johns. 491, s. p.

ruptcy of either, and by judicial decree, or by such a change in the condition of one of the parties as disables him to perform his part of the duty. It may also be dissolved by operation of law, by reason of war between the governments to which the partners respectively belong, so as to render the business carried on by the association impracticable and unlawful. (a)

(1) Of Dissolution by Voluntary Act. It is an established principle in the law of partnership, that if it be without any definite period, any partner may withdraw at a moment's notice, when he pleases, and dissolve the partnership. (b)1 The civil law contains the same rule on the subject. (c) The existence of engagements with third persons does not prevent the dissolution by the act of the parties, or either of them, though those engagements will not be affected, and the partnership will still continue as to all antecedent concerns, until they are duly

adjusted and settled. (d) A reasonable notice of the disso*54 lution might be very *advantageous to the company, but it

is not requisite; and a partner may, if he please, in a case free from fraud, choose a very unseasonable moment for the exercise of his right. A sense of common interest is deemed a sufficient security against the abuse of the discretion. (a) Though the partnership be constituted by deed, a notice in the gazette by one partner is evidence of a dissolution of the partnership

(a) Inst. 3. 26, sec. 7, 8; Vinnius, h. t. 3. 26. 4; Hub. in Inst. lib. 3, tit. 26, sec. 6; Pothier, Traité du Con. de Soc. n. 147, 148; 11 Ves. 5; 1 Swanst. 480, 508, 16 Johns. 491.

(b) Peacock v. Peacock, 16 Ves. 49; Featherstonhaugh v. Fenwick, 17 Ves. 298; Lord Eldon, in 1 Swanst. 508.

(c) Inst. 3. 26. 4; Code, 4. 37. 5.

(d) Pothier, Traité du Con. de Soc. n. 150, says, that the dissolution by the act of a party ought to be done in good faith, and seasonably, — debet esse facta bona fide et tempestive. He states the case of an advantageous bargain for the partners being in contemplation, and one of them, with a view to appropriate the bargain to himself, suddenly dissolves the partnership. A dissolution at such a moment, he justly concludes, would be unavailing. This general rule was also the doctrine of the civil law. Inst. 3, tit. 26; Dig. 17. 2. 65. 4; Domat, b. 1, tit. 8, sec. 5; Code Civil of France, art. 1869, 1870, 1871; Code of Louisiana, art. 2855 to 2859; 2 Bell's Comm. 532, 533; United States v. Jarvies, [Daveis, 274.]

(a) 17 Ves. 308, 309.

1 Skinner v. Tinker, 34 Barb. 333; Beaver v. Lewis, 14 Ark. 138. For some qualifications, even when the partnership is not for a definite period, or when a

power of expulsion is reserved, see Blisset v. Daniel, 10 Hare, 493; Featherstonhaugh v. Turner, 25 Beav. 382; Allhusen v. Borries, 15 W. R. 739.

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