Bayers v. C., R.I. & P.R. Co.

• Decision Date: 06 December 1879
• Citation: 3 N.W. 522,52 Iowa 478
• Court: Iowa Supreme Court
• Parties: L. BAYERS, APPELLEE, v. C., R. I. & P. R. CO., APPELLANT.

52 Iowa 478

3 N.W. 522

L. BAYERS, APPELLEE,

v.C., R. I. & P. R. CO., APPELLANT.^*

Supreme Court of Iowa.

Filed December 6, 1879.

On rehearing.

ROTHROCK, J.

In the foregoing opinion it is assumed that the surviving member of the firm of Queally & Bro. was legally bound to complete the contract, notwithstanding the death of the other member of the firm. The question as to the correctness of this proposition was not presented in the original submission. A petition for rehearing was filed, which was mainly devoted to this question, and a reargument was ordered. Counsel have discussed the question elaborately and with much force, and many adjudicated cases have been cited which discuss the effect of the death of one of several partners upon the existing contracts of the partnership. Other arguments are also advanced by counsel for appellee as reasons why the judgment should be affirmed. We are content with the conclusion reached in the opinion, and with the grounds thereof, and passing all other considerations will briefly discuss the principal propositions which are argued on the rehearing.

The death of one member of a partnership works a dissolution of the firm; but the partners are jointly and severally liable for the performance of the partnership contracts, and any one or all of the partners may be sued upon a contract made by the firm. Code, § 2553. In Parsons on Partnership, (2d Ed.) 409, it is said: “No dissolution of any kind affects the rights of third persons who have had dealings with the partnership without their consent. This is a universal rule, without any exception whatever.” It is true the surviving partner cannot continue the partnership business; that is, he cannot make new engagements and contracts, and bind the personal representatives of the deceased partner, but the survivor may and he is bound to perform the contracts enteredinto before the death of his copartner. It is his right and duty to perform and fulfil exisisting contracts, and to wind up the partnership. There is, it is true, a class of cases that hold that when a contract requires peculiar skill, or the actual personal services of the contracting party, the contract terminates with the death of the party bound to render such personal service, or exercise such peculiar skill. Of this class of cases are contracts for personal labor, or for publishing a book, editing a newspaper, and the like. Jenings v. Lyon, 39 Wis. 554;Wolf v. Hones, 20 N. Y. 197. In the last named...