Osborn v. Osborn
| Decision Date | 23 January 1877 |
| Court | Michigan Supreme Court |
| Parties | Nancy D. Osborn v. Ira Osborn and others |
Submitted on Briefs January 18, 1877
Error to St. Clair Circuit.
Judgment reversed, with costs, and a new trial awarded.
Chadwick & Voorheis, for plaintiff in error.
Brown & Farrand, for defendants in error.
OPINION
In this case the plaintiff was creditor of the firm of Osborn, Forsyth & Co., composed of the defendants Osborn and Dole and James Forsyth, and held their notes for the debt. Forsyth sold out to John R. Taylor, who by written agreement undertook to assume Forsyth's share of the partnership liabilities. The business was afterwards continued by Osborn, Dole and Taylor for about a year, when the partnership was dissolved by consent. During the time the new partnership continued, interest was paid by it to the plaintiff on her claim, and the payments were entered on the partnership books. Other debts of the old partnership were also paid by the new firm. After the dissolution of that firm, plaintiff brought suit against its members, declaring generally on the common counts, and also specially on the assumption by the new firm of her debt against the old, and the promise to her to pay it. Forsyth had previously assigned to plaintiff all claim he might have against Taylor on the agreement between them which is above stated.
The circuit judge thought the case came within the principle of Pipp v. Reynolds, 20 Mich. 88; Turner v. McCarty, 22 Mich. 265; and Halsted v. Francis, 31 Mich. 113. In each of those cases the plaintiff counted on a promise made to a third person, not to himself. In this case the plaintiff counts upon a promise made to herself, and the only question is, whether she establishes it.
That the new firm assumed the debt and made payments on it, is clear enough. Some reliance is placed on the fact that the financial man of the concern was the defendant Osborn, who was the husband of the plaintiff, and that it was not shown that the other defendants had personal knowledge of the payments made by him. But this is immaterial. Whatever is done by one member of the partnership in the course of the business must be supposed to be known to the others. And this presumption applies just as strongly to the acts of Osborn as to the acts of either of the others. The relationship to the plaintiff was of no importance whatever to the question of his...
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