Wolff v. Madden

The opinion of the court was delivered by Dunbar, C. J. It is not necessary for us to notice appellant’s objections to respondent’s contention that the relation assumed by appellant towards the Midland Lumber Company was that of an incoming partner, for assuming, for the purposes of this decision, that the jury correctly found upon that proposition, we are unable to find anything in the record which would bind him as an incoming partner to pay debts of the partnership which were contracted prior to his connection with the partnership. It would be a useless task for this court to discuss the question of liability by “holding out,” when the undisputed testimony as well as the conceded fact is that, at the time the order was given the Midland Lumber Company, and accepted by it, appellant had no connection whatever with said company, and there is no proof whatever tending to show, and none offered for the purpose of showing, that the credit given was given on the strength of appellant’s relation to the company, for the order was given on the company on the 4th day of December, and the appellant had no relation with the company until the 26th day of January following. And none of the witnesses who testified in relation to con [515] versations had with appellant concerning his connection with the company fixed the time for such conversation prior to that time. Considered, then, as an incoming partner, is he responsible for preexisting debts of the company ? It is a universally conceded doctrine that when a new member is admitted to a firm he becomes one of the firm for the future and not for the past. There is not only no presumption that the incoming partner assumes preexisting ' debts, but the presumption is that he does not. Without citing authorities, which are uniform on this subject, the rule seems to be briefly and concisely stated by 1 Lindley on Partnerships, p. 208, as follows: “In order to render an incoming partner liable to the creditors of the old firm there must be some agreement, express or tacit, to that effect entered into between him and the creditors, and founded on some sufficient consideration. If there be any such agreement the incoming partner will be bound by it, but his liabilities in respect of the old debts will attach by virtue of the new agreement and not by reason of his having become a partner. ’ ’ In this case there is no showing of anything that was said or done by appellant that could reasonably be construed into a promise to become liable for the debt sued upon. The testimony of himself and the creditors proves no more than that appellant, as manager for the company, recognized the company’s indebtedness. He could do no less than this, as it was a fact of which he was no doubt cognizant, hut this is a different proposition entirely from acknowledging his personal liability, and even if there could be any such construction placed upon his acts or words there is no showing of, or attempt to show, any consideration for the promise. In our judgment the testimony offered by plaintiff was utterly insufficient to sustain the judgment, and defendant’s motion for a non-suit should have been granted. [516] With' this view of the case it is not necessary to discuss the errors alleged in the admission of testimony, and in giving and refusing instructions. The judgment is reversed, and the cause remanded to the lower court with instructions to grant defendant’s motion for a non-suit as prayed for. Stiles, Hoyt, Scott and Anders, JJ., concur.