Ayer v. Kilner

• Decision Date: 26 February 1889
• Parties: AYER et al. v. KILNER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 468

20 N.E. 163

AYER et al. v. KILNER et al.

Supreme Judicial Court of Massachusetts, Worcester.

February 26, 1889

February 26, 1889

HEADNOTES

COUNSEL

Rice King & Rice, for plaintiffs.

C.W Bartlett and B.W. Potter, for defendants.

OPINION

HOLMES, J.

This is an action against the members of a partnership to recover for goods sold them. The defendant Sibley sets up that his firm was dissolved; that his former partner, Kilner, bought him out, and agreed to pay the firm debts, and that the plaintiffs accepted Kilner as their sole debtor. The judge before whom the case was tried found for the plaintiffs, and the only question before us is whether that finding is shown to be unwarranted by the facts found specially in the report. The argument for the defendant goes wholly on the assumption that the court ruled against him as matter of law, which does not appear to have been the case.

The only facts needing mention are that the plaintiffs knew of the dissolution, and continued to deal with Kilner under the old firm name, but informed him that he must make payments for his new purchases within 30 days, and that any payments in excess of this might apply on the old account. It does not appear with certainty that they personally knew of his agreement to pay the old debts. Afterwards, they wrote "J. Kilner & Co.--We inclose statement of both the old and new account. We *** want you to keep the new account down to thirty days. *** The old we want you to square up as fast as possible." Later they wrote again, stating the amount due on the new account, and also the amount due "on the old one; that is, yours and Mr. Sibley's," and asking for a statement "as to just how you stand financially, and in what condition your business is." The foregoing communications do not necessarily import assent to a substitution of liability, even if the plaintiffs had notice of the defendant's agreement, but rather the reverse.

It appears that Kilner said to Sibley in the presence of one Stevenson, the plaintiffs' selling agent, "that he had told Stevenson of the dissolution, and that he had bought out Sibley, and was to pay the debts of the old firm; and that the first money was to be applied to the old debts." But it does not appear that in fact Kilner and Sibley had agreed that the first money paid by Kilner should be applied to the old debts. Furthermore, Stevenson neither assented, nor, so far as...