M'Intire & Co. v. Oliver, 9 N.C. 209, 2 Hawks 209 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 209, 2 Hawks 209

M’Intire & Co. v. Oliver, surviving partner of Thomas & Oliver.

From Duplin.

An acknowledgment of one partner made after the dissolution of the firm, will prevent the operation of the statute of limitations on a claim existing against the copartnership.

This was an action of assumpsit for goods sold and delivered, and the question presented was, whether the acknowledgment of a copartner, made after the dissolution of the copartnership, prevented the operation of the statute of limitations on a claim existing against the firm ?

Gaston for the Plaintiff,

relied oil the following authorities : Whitcomb v. Whiting, (Doug. 653) — Jackson v. Fairbanks, (2 If. Black. 340) — Wood v. Braddock, (1 Taunt. 104) — -Smith v. Ludlow, (6 Johns. 26") — Johnson v. Beardsler, (15 Ibid. Sf — Shelton v. Cocke, (3 Mum. 197.)

Taylor, Chief-Justice.

A. partner cannot, after the dissolution, incur any responsibility for the firm, which did not exist before ; hut this debt was contracted during its continuance, and the right to it still subsists, though the remedy is suspended, and the acknowledgment of any one partner is sufficient to revive the remedy after the dissolution. This the authorities clearly shew, and the later ones go further and admit the acknowledgment of one of the partners, on the ground that their power continues with respect to rights created pending the partnership, after the dissolution. But the case now to be decided does not call for an opinion on that point.

Hall, Judge.

The dissolution of the partnership I think has no effect upon this case; it is true, that event put it out of the power of either partner to exercise any power derived from the articles of partnership, such as entering into contracts on behalf of the firm but obligations created during its continuance, as far as they relate to third persons, lose nothing of their force by its dissolution. But it does not appear to me, that this case depends at all upon that consideration. It appears that both before and after the dissolution of the partnership, they were jointly bound, and if they had jointly assumed and were jointly bound, it matters not whether they were partners of any particular firm or not. In their joint assumpsit and joint obligation to pay the debt to the Plaintiffs, they were quoad hoc, to be considered partners : it has nothing to do with a general partnership ; it is sufficient if they jointly owed the debt; they thereby, as to that transaction, made themselves partners, and as such, I think the acknowledgment of one takes the case out of the statute of limitations. The case of Whitcomb v. Whiting, (Doug. 652,) appears to me decisive of this case. There it was held that an admission of one of several drawers of a joint and several promissory note takes the case out of the statute as to the rest. The case, of Wood and others, assignees of Hussey, v. Braddock, (1 Taunt. 104,) is in point; the admission made by one of two partners after the dissolution of the firm, concerning joint contracts made during the copartnership, was held sufficient to charge the other partner. Let the rule for a new trial be discharged.

Henderson, Judge, concurred.