Majority
p. 210Ensign against Wands.
Headnote
Where there is a special and limited partnership, and persons deal, with it knowingly as such, they are bound by the terms of such co-partnership, and cannot hold the parties beyond them.This was an action of assumpsit, for goods sold and. delivered. The defendant pleaded in abatement that the plaintiff, and G. R. Webster, and G; Webster, were partners in trade at the time of making the supposed contract, and that the promises charged in the declaration, were made by the defendant to the said partners jointly, and not to the plaintiff severally. On this plea issue was" joined, and the cause was tried before Mr. Chief Justice Lansing, at the Albanycircuit, July Jast,
p. 211moved for a new trial on the ground that this was strictly a partnership debt, and could not, from its nature, be severed by the acts of the parties, so as to entitle one of them to maintain this action. insisted that the partnership was special, and the course of its dealings was understood by the defendant, and in this instance particularly assented to by him. He was, therefore, precluded from making his objection.
It appeared in evidence, that the goods for which this action was brought, consisted of several quantities of paper which were sold to the defendant, by the plaintiff, at a paper mill owned by the plaintiff and the Websters jointly, who were concerned together in the manufactory of paper at the mill ; that the Websters were in the habit of taking paper from it and selling it on their separate account, and the plaintiff did the like on his account; that this was understood between them to be the right of each owner, and the course of the business ; and no paper was sold on their joint account; that at different times they accounted to each other for the value of the sales so made, without any reference to the purchasers or to outstanding debts, which were not considered to be due to them jointly, but for which they were separately held accountable to each other according to their sales, and that the plaintiff had accounted to and satisfied the Websters for all the paper sold by him, including the parcel sold to the defendant.
It further appeared, that after a considerable part, and before the whole of the paper, for which this action was brought, had been delivered to the defendant, he informed the plaintiff that he wished to consider the sale as made by the plaintiffsolely, and independently of the other *owners, [*172] to which the plaintiff replied, that he considered it as made in that manner.
On this evidence, the chief justice was of opinion that the plaintiff was entitled to recover, and a verdict was found accordingly.
Bird, for the defendants,
Van Vechten, contra,
The partnership between the plaintiff and
p. 212
the Websteirs was special. As between themselves it was certainly competent to make it so. The moment a sale was made by one of them he immediately became- chargeable with the amount, and the profits accrued with certainty to the others, who were ho longer subject to the general risk of loss. The defendant understood this to he the course of their dealings, or' at, least requested that the sales to him might be considered as made with the plaintiff solely, to which the latter assented. It was; therefore, not a sale as from joint partners, either in respect to the plaintiff ?s situation with the Webstérs, or to the contract as made with" the defendant, and wb think'that the plaintiff may well maintain' this actionffce)[1]
Judgment for the plaintiff.
(a) (a) The partnership proved in this case, can hardly be called a special; partnership, which P -in the sense pf "thecommon law is that formed for a special or particular branch of business, as contradistinguished from the general business or employment of the parties, or of one of them.” Story on Partnership, § 75. Willett v. Ckambers, Cowp. 814,-81-6; See also 2 Bell Comm. B. 7, ch. 2