Farwell, Ozmun, Kirk & Co. v. Cashman

• Decision Date: 22 July 1895
• Citation: 41 P. 443,16 Mont. 393
• Parties: FARWELL, OZMUN, KIRK & CO. v. CASHMAN et al.
• Court: Montana Supreme Court

41 P. 443

16 Mont. 393

FARWELL, OZMUN, KIRK & CO. v. CASHMAN et al.

Supreme Court of Montana

July 22, 1895

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Farwell, Ozmun, Kirk & Co. against J. E. Cashman and others. There was a verdict for defendants, and from an order granting a new trial defendant Talbott appeals. Affirmed.

M. M Lyter, for appellant.

Samuel Stephenson, for respondent.

PER CURIAM.

Action for goods sold and delivered by plaintiff to defendants between December 9, 1891, and January 12, 1892. The defendant Talbott answered for himself alone, denying that the defendants were copartners, and denying that he was indebted to plaintiff in the sum alleged or at all. The case was tried to a jury. The testimony of plaintiff was that the goods had been sold and delivered to defendants in December, 1891, and January, 1892, as alleged; that the defandant Talbott was a member of the firm of J. E. Cashman & Co., and formally withdrew therefrom by an instrument in writing, whereby he sold his interest to Cashman, on November 23, 1891; that the plaintiff sold the goods sued for to the firm upon the strength of the fact that Talbott was a member of the firm that plaintiff had had other previous dealings with said firm while defendant Talbott was a member thereof. In September 1891, the firm of J. E. Cashman & Co. notified plaintiff that it was made up of J. E. Cashman, G. W. Talbott, and S. Allen and stated to plaintiff that the assets of the firm amounted to over $10,000, with liabilities not to exceed $1,000. Plaintiff never had any knowledge of any kind brought to it of the dissolution of the firm until long thereafter. There was no denial by the defendant of the fact that he had not notified the plaintiff of the dissolution of the firm. The court instructed the jury, in part, as follows: "Where a person has had dealings with a firm (former dealings), it is the business of the party who retires to bring notice to the parties with whom he has dealt, and in such a case the notice must be brought home to the dealer directly, or it must appear that facts came to the knowledge of the dealer in such a way as to advise him, or give him reason to believe, that the dissolution had taken place, and that the party had retired from the firm." The jury rendered a verdict for the defendants. On motion of plaintiff, the court granted a new trial. From this order the defendant...