Johanning v. Wilson

86 N.Y.S. 7

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 7, 1904
• Status: Published

Opinion

GREENBAUM, J.

The nature of this action, and the circumstances out of which it arose, are set forth in the opinion of this court on a previous appeal, heard at the last April term, when a judgment in favor of the defendants was reversed.

The facts as testified to by plaintiff’s witnesses show that the note in suit was given to Thornton, the original payee, for services rendered; that on April 29, 1902, while engaged in these services, the copartnership of defendants was in actual existence; that Thornton had direct knowledge of the fact from an inspection of the written articles of co-partnership given to him for use in connection with his employment; that although the copartnership was in fact dissolved on May 2, 1902, Thornton continued to render the services in procuring a theatrical license for the copartnership firm; that he had no notice of the dissolution while so engaged; and that the note in suit, which purported to be a partnership note, was executed and delivered to him during the period of time when such services were being rendered. Defendants contradicted plaintiff’s witness Thornton in many essential respects, but this court, in considering the legal question here submitted, must accept the facts as testified to by plaintiff’s witness. “It is the general rule that, after the dissolution of a partnership, neither of the parties can give notes or accept bills so as to bind the other partners, even when it is done for the purpose of providing for a debt due from the former firm. * * * There is no doubt that where the business is continued by one partner in the firm name after the dissolution of the firm, or-debts are contracted by him with persons who had previous dealings with the firm, all the members of the former firm are liable, in the absence of notice of such dissolution.” Morrison v. Perry, 11 Plun, 33. As the facts in this case show that Thornton had dealings with the firm during its existence, and continued them after the dissolution, without notice of the latter fact, the defendants are liable upon said note.

Nor can the defendants be heard to say that their partnership was fraudulently concocted, and the plaintiff participated in the fraud, because the finding of the court below must be held to have exonerated Thornton, and defendants cannot now be heard to set up their own fraud as a defense'to the note.

Judgment affirmed, with costs. All concur.