Buffalo Milling Co. v. Lewisburg Dairy Co.

159 F. 319, 1908 U.S. Dist. LEXIS 109

Opinion

ARCHBALD, District Judge.

It is denied by W. II. Coldren, the respondent, that he ever was a partner in the Eewisburg Dairy Company as charged, on the strength of which, also, he asserts his solvency and demands a jury trial. A partnership in fact, must of course, be shown. In re Beckwith & Co., 12 Am. Bankr. Rep. 453, 130‘Fed. 475. But the evidence on the part of the petitioners, while disputed, is sufficient to establish it, if believed; and if the case was to rest here I should be compelled to find in their favor. But, if the respondent was a partner, it is admittedly decisive of the question of his solvency, and, as he is entitled to go to the jury-upon everything which affects or enters into that, the question of partnership must be kept open for their consideration. Schloss v. Strellow (C. C. A.) 156 Fed. 662. It is true that this does not put the parties exactly on an equality; the petitioners being concluded if it should be found that he was not a partner, but the respondent not being reciprocally bound by its being decided that he was. But that is the law as laid down in the case just cited, and there is nothing to be done, therefore, at this time, but to refuse to dismiss the proceedings on the issue made by the denial of the respondent that he was a partner and thereupon send the case to a jury on the question of his insolvency.

And it is so ordered.