Kenney v. Altvater
| Decision Date | 16 November 1874 |
| Citation | 77 Pa. 34 |
| Parties | Kenney <I>versus</I> Altvater & Co., for the use of Marks. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR and GORDON, JJ.
Error to the District Court of Allegheny county: Of October and November Term 1874, No. 23.
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J. Barton, for plaintiff in error.—Actual notice of dissolution of a firm must be given to persons dealing with it: Watkinson v. Bank of Pennsylvania, 4 Wharton 482.
A. M. Brown, for defendants in error.
We discover no merit in the first three assignments of error.
The fourth assignment involves the validity of the payment made by the plaintiff in error.
Altvater and Marks constituted the firm of Altvater & Co. When the bill of goods was purchased, for which Marks now claims to recover, they were engaged in business as stonemasons; they were also contractors in the erection of buildings. As such they were purchasing and using stone. Altvater sold the goods to the plaintiff in error under an express agreement that they should be paid for in stone the next spring. The stones were delivered at the time specified and accepted by Altvater. In the intermediate time the firm had been dissolved. Altvater used these stones for his individual purposes. If the firm had not been previously dissolved, the delivery of the stones to one of the partners in pursuance of the contract, would have unquestionably been a good payment. The contract of their purchase by Altvater was within the general scope of the partnership business. The payment thus made by the plaintiff in error was in fulfilment of the contract. The misapplication by one of the firm did not impair the validity of the payment. Nor did it matter that the payment was made to Altvater after the dissolution, if it was made without notice thereof.
The learned judge makes a distinction between a delivery to Altvater and one to Altvater & Co. A delivery in fact to one of the partners in good faith according to the contract, was in law a delivery to both. Each member of the firm had authority to receive the payment thus made. The receipt of one was the receipt of both. The distinction under the evidence, we think, is unsound, and this assignment is sustained.
The fifth assignment relates to what notice of the dissolution is necessary to affect one previously dealing with the firm. The effort was to charge the plaintiff in error with notice by proof that a letter duly mailed to his address was sent by Marks's bookkeeper, notifying him of the dissolution and requesting payment of the bill of goods to be made to Marks. This was followed by proof that the letter was not returned from the...
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