Bank of New Orleans v. . Matthews

Peckham, J. The defendant, Matthews, who alone defends, insists that the partnership formed on the 27th day of March, 1861, by the defendants, to be void in case Bradner, Sr., then in Nassau, a proposed partner in commendam, refused to assent, became void by his refusal to give such consent, and that the contract of copartnership thereby became utterly void. But in fact the partnership did continue, though it might have been closed at once under that provision. It was not terminated in fact, as the evidence plainly shows. There is some ground for holding that the notice of the dissolution of the firm, published by them, or by those residing in New Orleans on the 21st of October, 1861, in the New Orleans Picayune, put an end to the firm, but I do not intend to discuss that point. The bar to this recovery is the dissolution of this copartnership by the civil war prior to the indorsement and discount of the note in suit. The general rule that war, civil or inter gentes, dissolves all partnerships between citizens of hostile States, and converts every citizen of one hostile State into a public enemy of the other, is conceded, as it may well be. (The Prize Cases, 2 Black., 685; Mrs. Alexander's Cotton, 2 Wall., 404; The Venice, id., 258; Woods v. Wilder, 43 N. Y., 164; Swinnerton v. The Colum. Ins. Co., 37 id., 178; Griswold v. Waddington, 15 J. R., 57; Griswold v. Waddington, 16 id., 438. This rule is based upon principles of public policy, and is not affected by the intentions of the parties. (Cases above cited.) But it is urged that this was not a commercial partnership, *16 and that therefore,the rule as to the effect of civil war upon such partnerships has no application to this. Waiving the question as to the rule of law, the fact is plainly otherwise. The plaintiff insists that by the laws of the partnership no shipments were to be made out of New Orleans; not so. The contract in terms provided for a partnership “ for the cotton factorage and general commission business in New Orleans.” But it was agreed that the firm “shall never.purchase or hold at any one time more than one thousand bales of cotton, nor shall any purchases be made ” (not that they will not make shipments) “for shipments, but only for sale in New Orleans.” This restriction simply applies to purchases for the purpose of shipments—not that they would not ship cotton in the course of their commission business for others—cotton on which they should make advances, or title to which- they might acquire in any way, but only they would not buy it for that purpose. This limitation, too, seems entirely confined to cotton. But it is clear that the firm in fact did a large commercial business—commercial in a liberal sense of the term— in buying and selling cotton, and various other products, in different States, in shipping them to others, to New York, to Liverpool, and in remitting proceeds to New Orleans, in purchasing bills of exchange and in other commercial transactions between the Confederate States and the United States, etc., etc. • This appears by the letters of the defendant, Matthews, introduced by the plaintiff. There is nothing in the case of Kershaw v. Kelsey, 100 Mass., 561, a sound decision, that aids the plaintiff upon such facts. It is further urged that the defendant is estopped from alleging that he resided in New York, after describing himself, in April, 1861, in his power of attorney to defendant’s agent, as of the city of New Orleans. In the articles of partnership Mitchell is described as of New York, and in fact he resided there continuously from *17 the time of the execution of the power of attorney, and there is no proof whatever that the plaintiff at the time of discounting this note supposed or believed that Matthews lived in Hew Orleans, or that it discounted this note upon any such idea, or that it had ever seen this • power of attorney. An estoppel cannot be based upon such facts. (Lawrence v. Brown, 1 Seld., 394.) It is superfluous to discuss the law when there is no fact for its application. Judgment should be reversed and new trial granted, costs to abide the event. All concur. Judgment reversed.