Kerper v. Wood
| Decision Date | 08 December 1891 |
| Citation | 48 Ohio St. 613,29 N.E. 501 |
| Parties | KERPER v. WOOD. |
| Court | Ohio Supreme Court |
Error to circuit court, Hamilton county.
Action by John S. Wood against James H. Parker and George B. Kerper as partners, on an account for goods sold. Judgment for plaintiff. Defendant Kerper brings error. Reversed.
The other facts fully appear in the following statement by MINSHALL, J.:
The suit below was upon an account against the members of a dissolved firm. Service was obtained upon one of them, the plaintiff in error, Kerper. No service was had upon the other, he being a nonresident. The answer, for one of its defenses, relied on the statute of limitations. The plaintiff, in reply, averred payments made after the dissolution by Parker, as liquidating partner, under the laws of Pennsylvania; also the execution of a promise in writing to pay the same, and that the payments and promise were within six years of filing the petition. On the trial to the jury the court, at the close of the evidence for the plaintiff, directed a verdict for the defendant. The plaintiff excepted, and placed the evidence on record by a bill of exceptions. A motion for a new trial was made overruled, and judgment rendered for the defendant dismissing the action, which, on error, was reversed by the circuit court. The present suit is prosecuted to reverse the circuit court and affirm the common pleas.
1. A promissory note executed by a member of a firm, after its dissolution, in consideration of the balance due upon an account with the firm prior to dissolution, is not, in the absence of express authority to execute it, such promise in writing as will, under the provisions of section 4992, Rev. St., take the demand on the account out of the statute of limitations, as against the other members; and this is so although the business of the firm was conducted, and the note executed, in a state by whose laws the one executing the note has power, as liquidating partner, to execute a note in settlement of the business of the firm that will bind the other members.
2. The law is the same as to payments made by such liquidating partner.
Ramsey, Maxwell & Ramsey , for plaintiff in error.
Kittredge & Wilby and Avery & Holmes , for defendant in error.
MINSHALL, J., (after stating the facts .)
James H. Parker and George B. Kerper, as partners under the firm name of Parker & Kerper, carried on the business of a tannery in the state of Pennsylvania from some time in 1870 to July 1, 1875, at which time the partnership was dissolved. At the time of the dissolution the firm was indebted to John S. Wood in the sum of several thousand dollars upon an account. On May 3, 1876, notice of the dissolution was given Wood by Parker, and that he ‘ was settling up the concern.’ On March 20, 1882, the plaintiff, Wood, commenced an action in the court of common pleas of Hamilton county upon the account, claiming a balance of $8,777.16 to be due him. Service was obtained upon Kerper, but not upon Parker, he being a non-resident of the state. The last item in the account before the dissolution was of the date of March 4, 1876. Other payments had been made by Parker subsequent to that time, and within six years of the commencement of the suit. The defendant answered, pleading, among other things, the statute of limitations, to which the plaintiff replied that the defendants had made payments on the account within six years next preceding the filing of the petition, and also, within the same time, had delivered to the plaintiff a written promise to pay the same. The case was tried to a jury, which at the close of the plaintiff's evidence rendered a verdict for the defendant by direction of the court. The testimony disclosed that the only payments that had been made upon the account after the dissolution had been made by Parker, and that the only written promise to pay the account was a promissory note, dated January 1, 1878, made by Parker in the firm name, and delivered to the plaintiff. It was also shown (but not pleaded) that by the law of Pennsylvania, where the partnership had been formed, and its business carried on, ‘ a partner who, after dissolution, remains in possession of the store or place of business, and attends to the collection of the debts due the firm, may give a note in the name of the firm for a debt due by the partnership, which will bind all the partners, although he may have no express authority to settle the business.’ If the payments made by Parker on the account after the dissolution of the firm may be treated as payments made by Kerper; or if the note executed and delivered by Parker can be regarded as a note executed and delivered by Kerper or his authority, then the court of common pleas erred in directing the jury to return a verdict for defendant, and its judgment was properly reversed. And it is plain, as we think, that, if the note cannot be so treated, then the payments should not. Payments are, at most, but evidence from which a promise may be inferred; and if an express promise by one member of a dissolved firm has not the effect of extending the running of the statute of limitations as against the others, plainly a promise that is simply inferred from a payment cannot be given any greater effect. Shoemaker v. Benedict, 11 N.Y. 176, 185.
The question, so far as it is controlled by the laws of this state, can hardly be regarded as open to discussion. Our statute of limitations fixes a period in which every action according to its class, must be commenced. It is a statute of repose, and not of presumption; and, unless the suit is commenced in the time limited, cannot...
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