Johnson v. Totten

Heydenfeldt, Justice, delivered the opinion of the court. Murray, Chief Justice, concurred.

The respondent urges that two sales, and 'receipts therefrom of money were made after the dissolution of the partnership, one by each partner, and that they were therefore not jointly liable. I am satisfied that notwithstanding the dissolution of the part[347]nership, yet for the purpose of fulfilling engagements made daring its existence, it had a limited existence legally, and subsisted for such purpose, even after the act of dissolution by the parties. See Collyer on Part. 118.

Independent of this position, it is positively shown that the plaintiff had no notice of the dissolution, which was absolutely necessary in order to change the character of the defendants’ liability. To affect the rights of one dealing with a partnership firm, actual notice of its dissolution must be brought home to him. It is true that notice may be implied from circumstances, but in this case, it is shown positively that although the defendants took every necessary step to give the notice, yet it was impossible that the plaintiff could have received it.

Another objection is that the amount of a sale made on credit is charged to the defendants, which could not be done in this form of action, because if they had no right to sell on credit, they would only be liable for unskilful management, and not for money had and received.

We have arrived at a different conclusion. If the defendants had no right to sell on credit, as appears from the evidence, having the right to sell, the sale must be taken in reference to the rights of the plaintiff as having been for cash. To the defendants belong the demand which the sale created against their vendee, and they are liable to the plaintiff as for money had and received.

Judgment affirmed.