Smith & Cheney Co. v. Schmidt

105 N.W. 39, 142 Mich. 1, 1905 Mich. LEXIS 630

Opinion

Grant, J.

(after stating the facts). The circuit court was in error. The witnesses testified positively that, when the order for the goods was given and received, the defendants composed the copartnership. This testimony implied knowledge. It was given by one who had visited the firm’s place of business and had taken the order. One of the partners had a right to give the order and bind the partnership. Whether the other partner knew it or not is immaterial. Having given the order when they were partners, it is no defense that, in the absence of notice of dissolution, the goods were shipped after the partners had dissolved and defendant Schmidt had retired. No notice of the dissolution was given to the plaintiff. Actual notice or knowledge of the facts sufficient to put plaintiff upon inquiry was necessary. The giving and taking of the order when the defendants were partners constituted a dealing with the firm which entitled plaintiff to actual notice. 1 Lindley on Partnership, p. 213; 22 Am. & Eng. Enc. Law (2d Ed.), p. 177; Burgan v. Lyell, 2 Mich. 102; Hall v. Heck, 92 Mich. 458; Sibley v. Parsons, 93 Mich. 538; Elkinton v. Booth, 143 Mass. 479.

Where goods were ordered before dissolution, but shipped after dissolution, without any change in the terms of the order, defendants were held liable. Goodspeed v. South Bend Chilled Plow Co., 45 Mich. 237. But where goods were ordered before dissolution, and the goods shipped after dissolution, but on different terms from the original order, the retiring partner was held not bound, as it created a new contract. Goodspeed v. Wiard Plow Co., 45 Mich. 322.

Judgment reversed, and new trial ordered.

Moore, C. J., and McAlvay, Blair, and Ostrander, JJ., concurred.