Majority
p. 536Hackley, survivor, &c. against Patrick, impleaded with Hastie. NEW-YORK, Nov. 1808.
Headnote
if one partner, who is authorised to adjust the debts due from the co-partnership, aftion^adfustsan account,andacbahmee^ tQS be due from the this acknowirot^bind Ids eopartner.THIS was an action of assumpsit, for goods sold and , , , , , , , . , mi delivered, money lent, and money had and received. JL he cause was tried at the last sittings held in New-Tork .
Patrick and Hastie entered into copartnership in 1800, ant* carried on their business in the city of New-Tork. On the 31st December, 1801, they dissolved their partnership, and a notice of the dissolution was published in the gazeaes Gf the city, in the following words : “ Notice. The mercantile concern, under the firm of Henry Hastie & Co. expired on the 31st ultimo, by its own limitation, All persons having any unsettled business with them, will please to call on the subscriber, at no. 103, Water Street, for an adjustment of the same. In future, the business will be carried on by Henry Hastie.
“ Henry Hastie.
“ January 7th, 1802.”
The plaintiff exhibited an account against Henry Hastie Co. dated April 11, 1804, on which was indorsed, an acknowledgment, subscribed by Henry Hastie, in his own name, as follows:
“ Norfolk, April 18, 1805.
“ If the dates in the within account are correct, antecedent to the dissolution of the copartnership of Henry Has-tie SR Co. that concern owes Richard S. Hackley SR Cm
p. 537
1034 dollars, and they owe me 289 dollars and 37 cents, which deduct from that balance, will leave Henry Hastie 5s? Co. in their debt, principal, 744 dollars and 37 cents.”
The counsel for the defendant objected to this acknowlodgment, as evidence to charge the defendant, but it was admitted by the judge. The defendant’s counsel then insisted that the plaintiff should prove that the dates in the account, prior to the dissolution of the copartnership of Henry Hastie £s? Co. were correct ; but the judge said that it was unnecessary,' as the burden of proof lay with the defendant to show their incorrectness ; and that the acknowledgment of Hastie, of the balance on that account, if the dates were correct, was conclusive evidence against the defendant in the cause.
Tire jury found a verdict for the plaintiff, for the balance there stated, and the interest thereon.
A motion was now made to set aside the verdict, and for a new trial, for the misdirection of the judge.
Mulligan, for the defendants,
contended, that it had been repeatedly decided, that the power of one partner to bind the other, ceased with the dissolution of the partnership, and that, if one partner could not give or indorse a promissory note, in the name of the partnership, after its dissolution, he could not, for the same reason, by his acknowledgment of an account, charge his co-partner. They cited Lansing v. Gaine and Ten Eyck, 2 Johns. Rep. 300 . 3 Esp. Cases, 108.
Colden, contra,
insisted, that it would be extremely inconvenient, if a partner, after the dissolution of the firm, was not allowed to adjust an account, and bind his co-partner for the balance he admitted to be due. It is true, that one partner cannot, after the dissolution of the co-partnership, bind his copartner by a new contract; but where he is expressly authorized to settle the debts of the former copartnership, he may bind his copartner in relation to such debts.[1] The authority of Hastie was not only implied but express ; and Patrick ought, therefore, to be
p. 538
bound by his acts, in relation to former debts, which he was empowered to adjust.
Wells, in reply, was stopped by the court.
This is a clear case. After a dissolution of a copartnership, the power of one party to bind the others, wholly ceases. There is no reason why his acknowledgment of an account should bind his copartners, any more than his giving a promissory note in the name of the firm, or any' other act. The plaintiff ought to have produced'furthef evidence of the debt; the acknowledgment of 'Hastie alone was not sufficient to charge Patrick.
There must be a new trial; with costs to abide the event of the suit.
New trial granted.