Reel v. . Boyd

BeogdeN, J. The death of a partner terminates a partnership, and the surviving partner, under the statute and decisions of this Court, is charged with the duty of reducing the personal property to cash and settling the partnership affairs. C. S., 3277 et seq.; Bank v. Hollingsworth, 135 N. C., 556, 47 S. E., 618; Sherrod v. Mayo, 156 N. C., 144, 72 S. E., 216; Irvin v. Harris, 182 N. C., 656, 109 S. E., 871. Therefore, the surviving partner was empowered to collect the account due by the defendant to the partnership. *216 Tbe plaintiff, however, contends that the business was continued by the surviving partner, and that there were mutual transactions between the surviving partner and the defendant as late as December, 1924, and that, as this action was instituted in September, 1927, the account was not barred by the statute of limitations. The principle of law applicable to such a situation was declared in Walker v. Miller, 139 N. C., 448, 52 S. E., 125. The Court declared: “The fact that they chose to carry on the business under the name of the old firm, does not change their rights. They could, if they had so preferred, selected any other name. Of course, the old firm, as originally constituted, was dissolved by the death of the partners. Whether the parties so intended or not, the legal effect of what they did was to create a new and original arrangement for carrying on business, the capital of which was contributed by the beneficial owners of the property. . . . It is not uncommon for a business which, by reason of the credit and reputation for integrity of the founders, possesses value to be conducted, after their death, under its original name. In such cases it is the business of the living owners, and contracts made by or with them, under the name adopted, have all the force and effect as if made in the names of the individuals to whom it belongs.” In view of this principle of law, it is obvious that the dealings between the parties after the death of W. R. Reel in May, 1924, would not have the effect of preventing the bar of the statute of limitations as to all items of the account prior to the death of the partner. Thus, in Irvin v. Harris, supra, it was held that “payments made on these notes by the surviving partner, after the partnership was dissolved by the death of H. C. Harris, cannot operate to keep alive or renew against the estate of a deceased partner, claims which, except for such payments, would be barred by the statute of limitations.” The decisions upon the subject rest upon the theory that independent transactions after the death of a partner constitute no part of the partnership assets, except, of course, in cases in which future dealings between the parties are necessary to complete existing contracts or as an incident of winding up partnership affairs. No such condition, however, is presented by this record. We are therefore of the opinion that the judgment was correct. Affirmed.