Willey v. Crocker-Woolworth National Bank
Synopsis
Partnership.—A Bank Receiving Deposits from A. B. P. & Co. is put on inquiry as to whether the depositor is not a partnership, rather than the individual A. B. P.
Partnership.—A Bank Receiving Deposits from, and Doing Business with, a partnership consisting of an individual and a corporation, is estopped to deny the validity of the partnership, when sued by it for a deposit.
Partnership—Death of Partner.—Code of Civil Procedure, section 1585, gives a surviving partner the right to continue in possession of the partnership, and to settle its business and account with the executor or administrator, and to pay over such balances to him as may be payable to him in the right of the decedent. Held, that, as the right of a corporate surviving partner to close up the partnership business after the death of its individual partner was not affected by the question of the legality of a partnership between a corporation and an individual, the estoppel of a bank receiving deposits from and doing business with such partnership to deny its legality was not terminated by the individual partner’s death.
PER CURIAM. This is an appeal from a judgment on a bill of exceptions. The facts are substantially as follows: A. B. Perry & Co., a copartnership composed of Alvan B. Perry and W. P. Fuller & Co., a corporation, did their banking business with defendant, a banking corporation, and had a deposit account with defendant. On. February 14, 1899, the said copartnership had on deposit with defendant [153]the sum of $1,720.64, .being the amount in controversy herein. On February 16, 1899, the said Alvan B. Perry died, leaving the said W. P. Fuller & Co. as the sole surviving partner. After the death of Perry, the said W. P. Fuller & Co. presented a check, properly drawn, to the defendant, and demanded the payment of said sum, but payment was refused, and has at all times since been refused. The plaintiff is now the holder of the demand by assignment from W. P. Fuller & Co., as the surviving member of the partnership. Defendant attempts to justify its refusal to pay upon the following facts :■ The said A. B. Perry & Co. had their "account and did their banking business with the Tallant Banking Company from August 4,1897, up to November 28,1898, but the said Alvan B. Perry had no personal account with the said banking company. On August 4, 1897, the said Alvan B. Perry, individually, borrowed from the Tallant Banking Company the sum of $1,600, giving his personal note therefor, payable ninety days after that date, which transaction was entered in their books and carried forward in separate account of Alvan B. Perry under and as bills receivable. On November 12, 1898, said Tallant Banking Company transferred to defendant certain of its assets, including the said note, and thereupon defendant assumed certain liabilities of the Tallant Banking Company, including the liability for the deposit to the credit of A. B. Perry & Co. The said deposit account was thereafter kept by defendant with the said A. B. Perry & Co., but said Alvan B. Perry had no individual account with defendant at any time. After the transfer by said Tallant Banking Company to defendant, it sent notices of interest due on said note to Alvan B. Perry, and the interest on said note was paid by said Perry from time to time. After the transfer of the said account to defendants, it gave to said A. B. Perry & Co. a passbook inscribed “A. B. Perry & Co.,” and the account was so kept on defendant’s books, and it dealt with said copartnership as such.—received its deposits and honored its cheeks—without prosecuting any inquiry as to who were the members constituting such co-partnership. On February 16, 1899, the day of Alvan B. Perry’s death, and without any authority or request from Alvan B. Perry or from A. B. Perry & Co., defendant charged up to the account of A. B. Perry & Co. the sum of $1,604.96, being the amount due upon the said note. Defendant claims
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