Claman v. Claman

was carried on by J. G. Beaty alone under the name of J. G. Beaty & Co. until he became insolvent in 1924. As a result of transactions with J. G. Beaty & Co. entered upon subsequent to the defendant's retirement, the plaintiff became a creditor of J.

In the County Court the action was dismissed on the ground that by making his claim against the insolvent estate of J. G. Beaty & Co. the plaintiff had elected to forego any rights he might have against the defendant. On appeal the judgment dismissing the action was upheld (1), but on the ground that, assuming the circumstances to be such that the plaintiff, if not apprised of the partnership dissolution, would be entitled to recover, he had For the reasons stated by Mr. Justice Riddell the Divisional Court (in our opinion rightly) rejected the ground on which the judgment of the County Court had been based; but, with deference, we are of the opinion that the onus. did not rest on the plaintiff of establishing that he was unaware of the defendant's retirement from the firm of J. G. Beaty & Co., and that the judgment of the Appellate Division, therefore, cannot be supported on the ground on which it has been put. In the absence of notice to the plaintiff of his retirement, the defendant would be liable. It rested upon him to prove either direct notice thereof or, at least, facts and circumstances from which knowledge of such retirement might fairly be inferred. A finding that the plaintiff had such knowledge was essential to the defence.

We do not discern in the circumstances of this case anything which takes it out of the general rule embodied in s. 37 of the Partnership Act, 10-11 Geo. V, (Ont.), c. 41, and thus stated in Lindley on Partnership, 9th Ed., p. 291: