French v. Barron

The opinion of the coux’t was delivei’ed by Ross, J. The only question presented by the repox*t of the referee is in regard to the competency of the defendant Eaton as a witness. If he is not a competent witness in the case, the judgment of the County Court for the larger sum reported must be affirmed. From Dr. Eaton’s testimony, it appears that the business which was carried on in the stox’e for which x’ent is charged, was conducted by him as the active manager, in the name of Benjamin F. Eaton & Go. By coxxducting the business thus, Dr.. Eaton held himself out to all persons doing business with the concern, as an active, visible, responsible partner, and whatever might have been his relations with Mr. Barron, he could limit his x'esponsibility only by actual notice to those with whom the partnership dealt. The intestate had no such notice, and had the right to treat Dr. Eaton as one of the parties contracting for the [473] use of the store. The contract then must be treated in fact what it was in name, a contract between the intestate and Benjamin F. Eaton & Co. Hence, as regards the intestate, being a legal party to the contract, by the statute, Dr. Eaton is excluded from testifying to anything touching the contract, or that was done under it prior to the appointment of the administratrix. On the facts testified to by Dr. Eaton, it is not clear that he was not an actual partner in the business. It seems he put his labor and experience against the stock on hand and rent of the store furnished by Mr. Barron. The profits were to be shared equally between them. His testimony is silent in regard to losses-if such should be incurred. Usually, where nothing is shown to the contrary, he who shares the profits must help bear the losses. There, are cases in which it has been held that a person receiving a portion of the profits merely as compensation for his services, would not thereby render himself responsible as a silent partner for the debts incurred in conducting the business, because he was not an actual or ostensible partner. Whether the facts reported bring this case into that class, we have no occasion to decide, as it is clear that one who advertises himself as an ostensible partner, cannot shield himself from liability behind a secret arrangement with the other partners, only so far as he brings knowledge of such arrangement to the creditors of the partnership. Judgment affirmed.