Jackson v. Bohrman

Cassoday, J. The findings of the referee seem to be supported by the evidence. The old firm having been dissolved before the defendant spoke to Fish about the divorce suit, the latter bad no right or authority to use Thompson's name in commencing that suit without his knowledge or consent. Prior to the rendition of the services in question the defend 424 ant had notice that Thompson’s name had been used without his authority and after the old firm had been dissolved. He was also informed by Thompson, in effect, that he would not aid him in prosecuting and trying that suit, unless he was specially retained and paid for his services. Thereupon, Thompson was retained by the defendant and performed the services in question at his special instance and request. The defendant declined to offer any testimony. There is no evidence that the services in question were ever settled or paid for to any one by the defendant or in his behalf. On the contrary, it appears from the evidence that Fish & Corn-stock presented to the defendant a bill for their services and disbursements, and at the same time a separate bill for Thompson’s services and disbursements. The former he paid, but the latter he declined to pay. No bill for services or anything in favor of the old firm seems to have been presented, much less settled or paid. Had it appeared that the defendant had paid Fish or Comstock for the entire services, including those rendered by Thompson, then the question urged by counsel would have been presented. Whether, even then, the defendant could have escaped liability, without showing affirmatively that he had applied to Fish in ignorance of the dissolution, and supposed that he had retained the old firm, and further that he had made such payment to Fish or Comstock in ignorance of the dissolution, may be doubted. Pratt v. Page, 32 Vt., 13. Rut, for the lack of evidence, the question is not here for consideration, and hence no opinion is intimated upon it. Such being the facts there can be no doubt as to the defendant’s liability. The contract for the services was with Thompson alone, but he was at the time in partnership with Jackson, and hence the action was properly brought by them as such partners. Warner v. Griswold, 8 Wend., 665. We find no error in the record. By the Court.— The judgment of the circuit court is affirmed.