Summary
In Reading Braid Co. v. Stewart, 19 Misc. 431 [43 N.Y. Supp. 1129], defendant's evidence showed that notice to plaintiff of dissolution of the partnership had been written on a post-card, but the boy to whom the mailing of the card was entrusted had no definite recollection of having mailed the same.
Summary of this case from Torvend v. PattersonOpinion
February, 1897.
H.A. Sperry, for appellant.
A.G. Wilcox, for respondent.
This is an appeal by the defendant Stewart from a judgment entered on the verdict of a jury rendered by direction of the court, and from an order denying a motion for a new trial.
The action was brought to recover the sum of $102.75 for goods sold and delivered at various dates between January 4 and March 16, 1895, to the defendants, who, it was alleged, carried on business as copartners under the name of the Arlington Embroidery Works.
The defendant Sturm suffered default, but the defendant Stewart interposed an answer by a general denial.
The only defense litigated by the defendant Stewart at the trial was that he sold out to Sturm on February 23, 1895, and ceased to have anything to do with the business, and that notice of his withdrawal was actually mailed and given by him to the plaintiff herein.
On this point the defendant's evidence introduced at the trial is, that notice of withdrawal was written out by the defendant, or his employee, on a postal card and that the boy believes that he mailed it with other notices, given to others with whom the defendants were in the habit of dealing; but there is no positive evidence that this notice was ever mailed to the plaintiffs in this action.
The plaintiffs, however, testify positively that they never received any such notice, and never learned of the fact that the defendant Stewart had withdrawn from the business.
The law is well settled that dealers are entitled to hold the several partners of a firm liable for subsequent dealings, unless they have actual notice in some form of the dissolution of the firm.
It is enough to discharge the retiring partner for him to show that knowledge of the dissolution of the firm was in some form brought home to the dealers.
This is a question of fact, upon which the alleged partner holds the affirmative and is to satisfy the court. Shoe Leather Bank v. Hartz, 24 Hun, 260.
The burden of proof in this case, therefore, was on the defendant Stewart to show, by a preponderance of evidence, that notice of his withdrawal from the business was brought home by him to the plaintiffs in this action.
This, with the meagre testimony on the part of the defendant in opposition to the positive denials on the part of the plaintiff, has not been accomplished in this case.
The court, therefore, was justified in directing a verdict for the plaintiff.
The test of the question is, if the verdict has been rendered by the jury on this point in favor of the defendant, would the court have been bound to set aside the verdict, as being against the weight of evidence? I think that it would have been.
Judgment is, therefore, affirmed, with costs.
O'DWYER, J., concurs.
Judgment affirmed, with costs.