Bowen v. Argall

By the Court, Cowen, J. No doubt the provisions of the 1 R. S. 753, 2d ed. prescribing the manner of instituting limited partnerships, must be substantially complied with, or the creditors may treat the members of the firm as general partners. The objections in this case to the forms of institution, all arise upon the 9th section of the statute, which provides that “ the partners shall publish the terms of the partnership when registered, for at least six weeks immediately after such,registry, in two newspapers to be designated by the clerk of the county in which such registry shall be made; and to be published in the senate district in which their business shall be carried on ; and if such publication be not made, the partnership shall be deemed general.” 1. The notice in the Post was that David C. Argale and William Argale, both of the city of New-York, had entered into the partnership. It did not mention their place of residence more particularly, nor their place of business at all. The notice was signed David C. Argale and William Argale. It did not contain the name of Argali at all, nor was it shown that they were known to the public by both names. By the 4th, 5th and 6th sections of the statute, in order to form a limited partnership, the members are first to sign and acknowledge, and cause to be filed and recorded at large in the clerk’s office of the county where their principal place of business shall be situated, a certificate, which shall contain, among other things, the names of all the general and special partners, distinguishing which are general and which are special partners, and their respective places of residence. Then [ *502 ] the 9th section directs the manner of publication. *The partners shall publish the terms of partnership. The form of notice is not given, but the object of it is plain ; that the public may be informed not merely of the terms, but the parties to the contract of partnership. Their names alone would doubtless satisfy the words and spirit of the section, provided they be truly given. In this instance they are not; but names very nearly the same, with the city of their residence, are given as a substitute. The Christian names are correct; and the mistake doubtless arose from the printer mistaking the final l in the manuscript surnames for an e, and thus being led to print the surnames so as to give a slightly differ [502] enfc sound. It is extremely difficult to imagine how the public could be misled by names so very nearly the true ones, accompanied with the superaddition of residence. Undoubtedly the true question is whether the mistake was, under the circumstances, calculated to mislead. In a case of doubt, the question should be put to the jury upon the circumstances. In this case, however, I apprehend it was unnecessary. I think it furnished a case for presuming that no one was misled, at least till the contrary was shewn. 2. It is said the notice was not published immediately after the registry ; that the parties waited three days. I apprehend the statute does not mean to speak of time or days immediately following the registry, but of the six weeks immediately after. The latter are its precise words. A publication in the first week immediately ensuing the registry, duly followed up by a repetition for the next five weeks, would seem to satisfy it in this respect. 3. A publication once in each of the ensuing six weeks is sufficient. The statute counts by weeks, taking one day, no matter which, if according to the common course of weekly publication, in each week. Thus, the full term of 42 days and more were made out in this case. One publication in each six consecutive weeks of seven days each, the first publication being within the first seven days after the registry, satisfies the statute in respect to time of publication. Each single publication in each week represents and should be reckoned for seven days. The publications are to *be in any two papers of the senate district, and by memtioning [ *503 ] weeks, the statute has an obvious reference to hebdomadal publications, which are those in prevalent practice, when considered in respect to the whole state. Notices to creditors in cases of insolvency stand on a different phraseology. The notice is there of a time to show cause, after the expiration of the six weeks preceding publication. Vide 1 R. L. of 1813, p. 462, § 5. The publication must be for six successive weeks,' once for each week in both cases, according to the ordinary course of publication. But in the case of insolvency, the weeks must be full befóte the time of showing cause. The anonymous case cited from 1 Wendell, 90, must have gone on this distinction. The learned judge who tried this cause in the cpurt below, (the late Judge Irving,) must have been eminently qualified to decide upon the practical and common understanding of clauses like the present when used in statutes, Much must depend on such understanding, in fixing its construction ; and I cannot but regard his decision as of considerable weight in favor of what I conceive to be the meaning on its face, and in the light of my more limited observation in this respect. On the whole, we think the objections grounded on the want of sufficient publication were properly overruled. With regard to such interference of William Argali in the business con503 corns of the firm as would work a forfeiture" of the privileges of a special partner, the judge laid down the law to the jury in the terms of the 17th section of the act, and referred it to them whether the evidence brought him within those terms. I have looked through the evidence, and am of opinion it is precisely of that character which called for such a reference. He was also clearly correct in submitting the question to the jury whether William Argali had concurred in or assented to the first assignment, another act, which, according to § 22, would have been fatal to his special character, and subjected him as a general partner. ■ There was no direct, unimpeachable and conclusive testimony on either of these heads ; none to which the judge could, as matter of law, attach any definite influence. [ *504 ] In Mills v. Argall, 6 Paiye, 577, 582, the chancellor held *th at this second assignment was contrary to the 23d section of the statute, inasmuch as it provided that William Argali should be paid his endorsement rateably with the other creditors. The section cited declares that, in case of the partnership becoming insolvent, no special partner shall, under any circumstances, be allowed to claim as a creditor, until the claims of all the other creditors shall be satisfied. The judge charged that this provision is confined, in its true construction, to the special partner’s claim for capital paid in. It is not now necessary to pronounce whether this or the chancellor’s construction was right; for I see nothing in the act declaring as a consequence of an assignment or other act providing for the forbidden preference, that the special partner should thereby become liable as a general one. The only consequence of the construction contended for by the plaintiff in error would, therefore, be the avoiding of the particular provision for the benefit of the other partnership creditors, in a proceeding adapted to enforce the claims of preference. The objection as to the variance between the $2000 actually contributed, and the sum mentioned as contributed in the advertisement, viz. $5000, was not made a point at the trial; and therefore is not now noticeable. Very likely, as suggested by the counsel for the defendant in error, it has arisen from a clerical mistake in the bill of exceptions, or in copying. That it may have arisen in either way, is a material argument why the settled practice should be adhered to, of refusing to notice any point not presented specifically at the trial. On the whole, we are of opinion that the judgment of the court below should be affirmed.