Barkley v. Beckwith

90 A.D. 570, 86 N.Y.S. 128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1904
• Status: Published

Opinion

Houghton, J.:

The action is to recover the value of certain valves claimed to have been furnished by the plaintiff’s assignor, the Mohawk and Hudson Manufacturing Company, to the defendants Lewis and Beckwith as copartners.

The appellant Beckwith had been a partner with Lewis in the installation of a water system at Mount Kisco. During the continuance of that partnership letter heads were printed and used, reading, as follows: “ R. B. Lewis, Clinton Beckwith. R. B. Lewis & Co., Herkimer, N. Y., General Contractors. Waterworks, Sewers, Dams, Foundations, etc.” After the completion of the Mount Kisco contract, Lewis opened an account with. plaintiff’s assignor and directed that the goods be shipped to him at another place. The first installment was shipped to him individually, and thereafter they were shipped to R. B. Lewis &" Co., but it was not shown that Beckwith knew that the goods were so consigned. The only evidence tending to charge appellant Beckwith as;copartner was that he knew that Lewis was using the old stationery in his correspondence and permitted him to do so. The plaintiff’s assignor had not dealt with the old partnership, but opened its account after it was in fact closed. The permitting of the use of the stationery was not such an act as estopped the appellant from denying the partnership, or constituted him a partner as to the vendors. Nor was there any other evidence in the case which had that effect. The defendant’s motion for a nonsuit should have been granted, and failing to do this, the court should have granted his motion for a new trial.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.