H. Amidown & Co. v. Osgood & Minard

By the Court. There does not seem to be any good reason to require the plaintiffs to set off the value of the mittens consigned to them by Minard, against the goods sold on the credit of Osgood & Minard, if the plaintiffs were justified in so selling the goods. For firstly, no such question appears ever to have been raised in the case before this time, and by every rule of practice it must have been raised in the court below, in order to form any ground of error in this court. Secondly, if the two first bills of goods were fairly delivered on the credit of Osgood & Minard, then there can be no doubt the offset must first be applied to extinguish Minard’s own debt, which may have been contracted upon the faith of this very consignment. The only question, then, is, whether defendants are liable for the goods charged to them. The law requires, that upon the dissolution of a mercantile partnership, noticé of such dissolution shall be published in a newspaper circulating in the place of such business, in order to exonerate the retiring partner, even, as to those with whom the firm have had.no previous dealings, and as to these latter actual notice is required. In the present case there can be no doubt the goods were really delivered, upon the credit of the partnershijs, which is the ground of decision in the case cited, 54 Com. Law 31. And as to the bill marked “A.” the goods were delivered before any publication of dissolution, and while Osgood still remained in the store, as clerk to be sure, but with the old sign still up. Under these circumstances it seems to us the credit must be regarded as fairly given to the partnership. And in regard to future dealings we do not see why in justice the plaintiffs should not be reasonably entitled to the same notice, as if the dealing had been before the actual dissolution. Osgood knew that the firm would be liable for all goods bought by Minard on the credit of the firm, before the publication of the dissolution, and as he trusted him with that power, it is but reasonable he should be bound to take notice how he used the power, and be bound by his use of it, the same as if he had actual notice, and so in reality to be bound by his abuse <of the power. *283 This would impose upon him the necessity of searching out those with whom Minard had dealt upon the credit of the'iirm, before the publication of notice of the dissolution of the copartnership, and give them actual notice of such dissolution. There seems to be some equity in requiring this in the present case, as if Osgood had had actual notice of the purchase of the first bill of goods upon the partnership credit. The dissolution did not become effectual, as to third persons, until the publication. As to everybody but the parties, the date of the dissolution is the time of the publication, as the date of the record of a deed is the date of the deed to all purposes of third persons, who have acquired interest in the land subsequent to the date of the deed. Judgment affirmed.