Ketcham v. Clark

New York Supreme Court

Ketcham v. Clark

6 Johns. 144

CourtNew York Supreme Court

DecidedMay 15, 1810

StatusPublished

Cited by23 cases

This text of 6 Johns. 144 (Ketcham v. Clark) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ketcham v. Clark, 6 Johns. 144 (N.Y. Super. Ct. 1810).

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Opinion

Van Ness, J.

delivered the opinion of the court. The question is, whether Black had not authority to, bind his copartner, when he accepted the order of the 30th of June. That acceptance was binding, if Clark, who took it, was not chargeable with notice, either express or constructive, of the dissolution of the partnership. The order was drawn upon the firm by a house which had formerly sold goqds to the firm, and it was. [147]*147drawn in favour of a person who had also previously dealt with it. By the terms of the articles of copartnership, the partnership had ceased on the 1st of May preceding; but no notice of this dissolution appears to. have been given, either to the public at large, or, particularly, to either of the parties to the order in question. The order was accepted by Black, for and in behalf of the house of Ketcham and Co. and "though this acceptance was a new contract; yet, until notice of the dissolution was given, each partner was still competent to hind the firm to all persons not chargeable with notice of such dissolution.

In the present case, there was not only the want of notice, but the partners continued to carry on business, in a manner calculated to induce the public to believe the partnership was still subsisting. They continued together, selling the stock on hand, and collecting the outstanding debts, between the 1st of May and the 22d of Jnnef 1 SO-/, On that day one of the copartners assigned over all his share of the partnership stock to third persons ; and this act was, of itself, a termination of the partnership. But there is no evidence that the knowledge of this act, between that day and the 30th of yunc, went beyond the persons concerned in it, or that jt reached the parties to the order in question., who had formerly been dealers with the firm.

It has not been settled, by any decision in this court, when a partnership is to be dissolved, so as to bind the copartnership by a new contract. In the case of Lansing v. Gaine and Ten Eyck, (2 Johns. Rep. 304.) it was intimated that notice must be given according to the rule- in the English law; but this was not a turning point in that case. In England, it seems to be necessary, that the notice should be given in a particular newspaper, viz. The London Gazette; but we have no such usage or rule here. I think, however, we ought, at least, to go so far as to say, that public notice must be given in a newspaper of the city or county where the [148]*148partnership business was carried on; or in some other way public notice of the dissolution must be given. The reasonableness of it may, perhaps, become a question of fact in the particular case; but public notice, in some reasonable and sufficient manner, must be given, and that will conclude all persons who have had no previous dealings with the firm; or if actual knowledge of the dissolution is, without such notice, brought home to the person dealing with the firm, such knowledge may be sufficient to conclude him. But as to persons in the habit of dealing with the firm, public notice is not sufficient by the English law. The notice must be specially communicated to such individuals. These rules have been frequently and solemnly laid down, as part of the mercantile law of England,, on this subject. (Graham v. Thompson, Peake, 42. Godfrey v. Turnbull and Macauley, 1 Esp. Cas. 371. Graham v. Hope, Peake, 154. Parkin v. Carruthers, 3 Esp. Cas. 248. Minnit v. Whitney, 16 Vin. 244. pl. 12.) The necessity and justice of these rules call loudly for their sanction by this court, for, as Lord Kenyon observes, in one of the cases, “ It would be the hardest measure imaginable upon the creditor, were the law otherwise ; for while he supposed he was giving credit to a man having sufficient to satisfy the whole of his demand, he might be trusting a beggar.”

Upon these principles there can be no doubt but that both the copartners were bound by the acceptance. Here does not appear to have been any public notice given of the termination of the partnership ; and much less any special notice to the defendant, who had before dealt with the firm, and who, no doubt, took the acceptance as a valid and bona fide contract, binding upon both the plaintiffs.

We are, therefore, of opinion, that the judgment below ought to be affirmed.

Judgment affirmed,

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Van Ness, J.

delivered the opinion of the court. The question is, whether Black had not authority to, bind his copartner, when he accepted the order of the 30th of June. That acceptance was binding, if Clark, who took it, was not chargeable with notice, either express or constructive, of the dissolution of the partnership. The order was drawn upon the firm by a house which had formerly sold goqds to the firm, and it was. [147]*147drawn in favour of a person who had also previously dealt with it. By the terms of the articles of copartnership, the partnership had ceased on the 1st of May preceding; but no notice of this dissolution appears to. have been given, either to the public at large, or, particularly, to either of the parties to the order in question. The order was accepted by Black, for and in behalf of the house of Ketcham and Co. and "though this acceptance was a new contract; yet, until notice of the dissolution was given, each partner was still competent to hind the firm to all persons not chargeable with notice of such dissolution.

In the present case, there was not only the want of notice, but the partners continued to carry on business, in a manner calculated to induce the public to believe the partnership was still subsisting. They continued together, selling the stock on hand, and collecting the outstanding debts, between the 1st of May and the 22d of Jnnef 1 SO-/, On that day one of the copartners assigned over all his share of the partnership stock to third persons ; and this act was, of itself, a termination of the partnership. But there is no evidence that the knowledge of this act, between that day and the 30th of yunc, went beyond the persons concerned in it, or that jt reached the parties to the order in question., who had formerly been dealers with the firm.

It has not been settled, by any decision in this court, when a partnership is to be dissolved, so as to bind the copartnership by a new contract. In the case of Lansing v. Gaine and Ten Eyck, (2 Johns. Rep. 304.) it was intimated that notice must be given according to the rule- in the English law; but this was not a turning point in that case. In England, it seems to be necessary, that the notice should be given in a particular newspaper, viz. The London Gazette; but we have no such usage or rule here. I think, however, we ought, at least, to go so far as to say, that public notice must be given in a newspaper of the city or county where the [148]*148partnership business was carried on; or in some other way public notice of the dissolution must be given. The reasonableness of it may, perhaps, become a question of fact in the particular case; but public notice, in some reasonable and sufficient manner, must be given, and that will conclude all persons who have had no previous dealings with the firm; or if actual knowledge of the dissolution is, without such notice, brought home to the person dealing with the firm, such knowledge may be sufficient to conclude him. But as to persons in the habit of dealing with the firm, public notice is not sufficient by the English law. The notice must be specially communicated to such individuals. These rules have been frequently and solemnly laid down, as part of the mercantile law of England,, on this subject. (Graham v. Thompson, Peake, 42. Godfrey v. Turnbull and Macauley, 1 Esp. Cas. 371. Graham v. Hope, Peake, 154. Parkin v. Carruthers, 3 Esp. Cas. 248. Minnit v. Whitney, 16 Vin. 244. pl. 12.) The necessity and justice of these rules call loudly for their sanction by this court, for, as Lord Kenyon observes, in one of the cases, “ It would be the hardest measure imaginable upon the creditor, were the law otherwise ; for while he supposed he was giving credit to a man having sufficient to satisfy the whole of his demand, he might be trusting a beggar.”

Upon these principles there can be no doubt but that both the copartners were bound by the acceptance. Here does not appear to have been any public notice given of the termination of the partnership ; and much less any special notice to the defendant, who had before dealt with the firm, and who, no doubt, took the acceptance as a valid and bona fide contract, binding upon both the plaintiffs.

We are, therefore, of opinion, that the judgment below ought to be affirmed.

Judgment affirmed,

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6 Johns. 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ketcham-v-clark-nysupct-1810.

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