Tenney, Ballister & Co. v. New England Protective Union, Division No. 172

Kellogg, J. No copy of the plea in abatement, or of the defendants’ constitution, by-laws, and records, having been furnished to us, we must assume that, in the judgment of counsel, the references to these papers in the briefs are sufficient for the purposes of the hearing in this court. We are informed by the briefs that the plea in abatement and the defence to the action both rest on the alleged [67] fact that the defendant Pierce had ceased to be a member of the partnership of the defendants before the debts which are the subject of the suit were contracted. From the facts found by the county court, it appears that these debts were contracted between May, 1858, and February, 1861, and that Pierce was one of the original members of the partnership, or division, at the time of its organization in 1850, and, from that time up to the time of his removal from Londonderry to Plymouth in July, 1859, he appears to have been an active director and leading manager of the division. The defendants’ division or partnership commenced making purchases of goods from the plaintiffs as early ás May, 1858, —a year or more previous to the time when, as is claimed, Pierce ceased to be a member of the division. The natural presumption arising from the fact that the plaintiffs gave credit to the division is that the credit was given in reliance upon the liability of the members of the division at that time, and that the plaintiffs knew who were the members of the division to which they were giving credit. Nothing appears in the case tending to establish a contrary conclusion. Did Pierce cease to be a member of the division as between himself and the other members ? His removal from the town could not affect the question, unless there was some provision in the constitution or by-laws of the division which made residence in the town a condition of membership. It is not claimed that there was any such provision in this case. Neither would his supposition that he had ceased to be a member of the division affect the question, unless there was some act on his part which justified that supposition. It distinctly appears that he did not at any time say any thing to the agent of the division about withdrawing from it; and it does not appear that he gave any information to any other officer or member of the division of his purpose or desire to withdraw from it. We find no ground on which it can be claimed that, as between himself and the other members, he ceased to be a member of the division. It is clear that he did not relieve himself from liability by ceasing to participate in the management of its business. But even if, as between him and the other members, he had ceased to be a member of the division, still, as he was a member when the [68] dealings between the plaintiffs and the division began, the plaintiffs' were entitled to treat him as a member until they were notified that he had withdrawn from the division, unless it appeared that, when they gave credit to the division, they did not know that he was a member of it. No such notice is claimed to have been given by Pierce to the plaintiffs. His liability to the plaintiffs would continue the same as that of any other member of the division until this notice was given. This is a settled principle of the law of partnership. It is claimed that the defendants’ partnership was dissolved in October, 1860, by the death of Russell Aldrich, one of its members, and that the surviving members cannot be held responsible for the dealings had with the plaintiffs after that time without their assent or knowledge, although had in the name of the division and by its managing agent, and in the same way that the previous dealings had been had. It is not necessary to pass upon the question whether this division or association was in strictness a partnership or not, inasmuch as both parties claimed that it was a partnership. It was found by the county court that the association was designed to be continuing and to have perpetuity, and not to be dissolved, or its continued existence as a partnership to be affected by the death or withdrawal of any member. The death of Aldrich would not, therefore, work a dissolution of the partnership any more than would the withdrawal of any other member from it. Neither the death nor the withdrawal of a member would affect the liability of those who continued to be members for debts contracted in the name and for the benefit of the association. We find no ground for the conclusion that Pierce was improperly made a defendant in this suit; and the judgment of the county court in favor of the plaintiffs is accordingly affirmed.