Hurst v. Hill

Tuck, J., delivered the opinion of this court. The point to be considered on the defendant’s prayer is, whether, upon the proof stated, he was liable on the note made by Gardner, in the name of the firm, on the 8th of April 1850, after the partnership had been dissolved. Upon the propriety of this instruction we enlertain no doubt. The decided cases show very clearly, that one partner cannot, by a new contract, in the name of the firm, bind his late partner, even when the consideration is a debt of the firm.

In Ellicott vs. Nichols, 7 Gill, 100 , the Court of Appeals said, “tbe doctrine is fundamental, that from the moment tbe partnership terminates the partners become distinct persons with respect to each other, and that, consequently, one partner can have no power to subject, by his acts or declarations, his former associate to new obligations, burdens or responsibilities;” and in 3 Kent’s Com., 62, “One partner cannot impose new obligations on the firm, nor vary the form or character of those ⁴⁰⁴ already existing.” The same doctrine was announced us, Bell vs. Morrison, 1 Peters, 351. Conceding that he may: acknowledge a debt of the partnership after the dissolution, and thereby continue the liability of the other partners, ■where, the cause of action is not barred by the statute of limitations at the time of the acknowledgment, it is certain that the claim can be enforced only in the form in which the debt stood at the dissolution. Carey on Partnership, 187, 188. Collyer, secs. 540, 541.

Story on Part., secs. 322, 323, 324. He cannot change the form of the indebtment by giving a new note in the name of the firm. Perrin vs. Keene, 19 Maine, 355. National Bank vs. Norton, 1 Hill, N. Y. Rep., 572.

That the note now sued is a new contract is very plain. The note held by the plaintiffs when the firm was dissolved was past due when the present one was. given by Gardner to them. By it the time was extended, without the consent of-Hill, which not only prevented him from paying the