McCahan v. Smith

Opinion by William W. Pouter, J., On April 28, 1876, and April 26, 1878, respectively, two advertisements were inserted in the Huntingdon Journal by the firm of S. S. Smith & Son. The publication of these seems to have been continued without alteration or interruption down to August 1, 1896. Meanwhile, the firm of S. S. Smith & Son was dissolved by the death of the son on January 22, 1891. The proprietor of the Journal died in 1896. Thereupon this suit [323] was brought by the administrator of his estate for $1,993.33 for the publication of the advertisements. “ S. S. Smith, surviving partner of the late firm of S. S. Smith & Son,” was named as defendant. There was no proof of demand having been made for payment until just prior to the bringing of suit. The defendant was not permitted to testify because of interest. The suit was based on an obligation to pay implied by reason of the services having been rendered with the presumptive knowledge of the defendant. The claim was limited by the court (the plea of the statute having been entered) to the period of six years nextpreceding the bringing of the suit. Proof was made of the appearance of the advertisements in the several issues of the paper, and of a book containing two equivocal entries against S. S. Smith & Son, under date of May 24, 1878, wherein the firm is charged with the publishing of the advertisements for eighteen years. The evidence of knowledge by the defendant of the publication of the advertisements consisted in showing that he was a subscriber to the paper for the period during which the advertisements appeared. An important fact, developed by the testimony, was that certain marks were appended to the advertisements. At the bottom of one was “ April 26-6 m.,” and of the other, “ April 28, 1876-Y.” ■ At the trial, the then editor of the paper testified as to the first, “ That would indicate that the advertisement was to be in for six months from that time,” and as to the second, “ That is marked ‘April 28, 1876-Y’ for one year, I suppose, or yearly. .... Does not that indicate that it was put in for one year ? If there was an ‘1’ before the ‘Y,’ it would mean that. You don’t know what the ‘ Y ’ means ? Not exactly.” This evidence was drawn from the plaintiff’s witness. The «marks on the advertisements, as thus interpreted, went far toward rebutting the presumption contended for by the plaintiff, namely, that the publications, having been continued with the probable knowledge of the defendant, were to be paid for. This evidence was wholly unnoticed by the trial judge in his charge. It should, at least, have led him to extend the inquiry of-the jury beyond the single question, whether the defendant knew of the insertions of the advertisements. [324] It is tó be observed that this suit is brought against the defendant as the surviving partner of the late firm of S. S. Smith & Son.” It is to recover for the publication of advertisements of the business of the firm. Where the statute of limitations is pleaded, it is incumbent upon the plaintiff to prove either an original obligation, or a new promise reviving a former obligation given, infra sex annos. The partnership of S. S. Smith & Son was dissolved by the death of the son on January 22, 1891, more than six-years before the bringing of this suit. It was not possible for the surviving partner to give an original obligation binding upon the dissolved firm. “ The law is well settled that after dissolution of a partnership, the partners cease to have any power to make a contract in any way binding on each other. The. dissolution puts an end to the authority and operates as a revocation of all power to create new contracts: ” Read, J., in Reppert v. Colvin, 48 Pa. 248; Kauffman v. Fisher, 3 Gr. 302. The following point of charge was submitted to the trial judge, and refused: “After the dissolution of the firm of S. S. Smith & Son, no debt, such as that for which this suit is brought, could have been contracted in the firm name.” This point should have been affirmed. The plaintiff’s claim extends far back of the period of six years before suit brought. The court correctly held that ho could not recover for more than six years by reason of the statute. The plaintiff did not attempt to prove a new express promise on the part of the defendant to pay within the six years. The proof was limited to the publication of the advertisements and to the fact that the defendant was a subscriber to the paper. By this he was to be charged with knowledge of the publication and with an implied promise to pay. Even if it be conceded that the proof submitted might charge the defendant personally, it is insufficient to sustain an action against him as a surviving partner. The defendant was entitled to an affirmance of the following point, which was refused : “ The defendant having plead the statute of limitations, and no debt of the firln having been shown to exist within six years from the bringing of the suit, the verdict must be for the defendant.” But viewing this case in the light of an attempt to revive a [325] partnership debt, an express promise by a partner after dissolution will not take the debt out of the statute of limitations so as to make the copartnership liable: Reppert v. Colvin, supra. “ The theory of the law on this head, as held hy the courts o f Pennsylvania, is not that the old promise is revived, but that the subsequent confession of the debt is evidence of a new one, and he, who has no authority to act for another, cannot bind him hy acknowledging that he is indebted, or by expressly promising for him that he shall pay. Now, by the dissolution of a partnership, the power, which each had to bind the others, is at an end, except for the purpose already indicated, — to finish what remains to be done in order to close its concerns: ” Gibson, C. J., Houser v. Irvine, 3 W. & S. 345; Coleman v. Fobes, 22 Pa. 156 ; Stewart’s Appeal, 105 Pa. 307. True, it was held, in Reppert v. Colvin, supra, Houser v. Irvine, supra, and Wilson v. Waugh, 101 Pa. 233, that when a partner takes the stock on hand and becomes the liquidating partner, he can, under certain circumstances, by a new promise or payment on account after dissolution, take the debt out of the statute so as to make the copartners liable. But this case is not that of a revival of an old debt by a new promise. Proof of an express promise by the surviving partner has not been attempted. The obligation sought to be imposed is based upon implication. This cannot revive an obligation of the partnership dead at the hands of the statute. This is a stale claim. The plaintiff’s decedent (so far as the evidence shows) waited more than eighteen years and died without making demand for payment. The administrator may have regarded it as his duty to attempt a collection, but in the case of such a claim as this, the courts are inclined to give full effect to the statute of limitations. The conclusions, above expressed, lead us to reverse the judgment of the court below. Judgment reversed, and judgment is entered in favor of the defendant with costs;