Stimson v. Whitney
| Decision Date | 08 April 1881 |
| Citation | 130 Mass. 591 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Elbridge Stimson v. Austin Whitney & others |
Exceptions sustained.
G. F Verry & F. A. Gaskill, for the plaintiff.
G. F Hoar, (F. T. Blackmer with him,) for the defendants.
This action is brought on several promissory notes, dated in March, April, May and June, 1876, signed by J. W. Bragdon Jr. & Company, and indorsed by A. Whitney & Company.
It is contended by the plaintiff that George S. Winslow and others doing business under the firm name of Winslow Brothers, and Austin Whitney, who are the defendants in this action composed the firm of A. Whitney & Company. Whitney was defaulted, and one question at the trial, upon which much evidence was introduced, as reported in the bill of exceptions, was whether Winslow Brothers were partners as to third persons in the firm of A. Whitney & Company, when the indorsements were made.
The notes were signed by J. W. Bragdon, Jr., of the firm of J. W. Bragdon, Jr. & Company, of which firm Whitney was also a member. Whitney indorsed the notes in the name of A. Whitney & Company, and, having them in his possession, procured the indorsement of the plaintiff upon them as accommodation indorser. The plaintiff, having been obliged to pay the notes, seeks in this action to recover of Winslow Brothers, as members of the firm of A. Whitney & Company, the amount so paid.
The evidence reported, so far as material to the question raised, tended to establish the following facts: In 1866, the plaintiff and Whitney were the owners of a tannery and finishing shop in Ashburnham, in which the plaintiff carried on the business of tanning, and Whitney, under the name of A. Whitney & Company, the business of finishing leather. During the same year, the Winslow Brothers, being desirous of engaging in business with Whitney at Ashburnham, purchased of the plaintiff his interest in the shop and fixtures, and took a conveyance to themselves as copartners under the name of Winslow Brothers. They then formed a copartnership with Whitney, by an oral agreement, under the name of A. Whitney & Company, and engaged in the business of tanning and finishing leather at Ashburnham, dividing the profits equally between them until September 1, 1871. Whitney attended to the business in Ashburnham and forwarded the finished leather to Winslow Brothers in Boston. In 1869, the terms of the copartnership were reduced to writing, and the copartnership was continued under these articles until September 1, 1871. The case finds that the plaintiff knew of the existence of the copartnership, and who composed it, under the name of A. Whitney & Company. The articles provided that neither party should contract any debt or make or indorse any notes without the assent of the others.
During this period, Winslow Brothers made advances of money and materials to the firm of A. Whitney & Company, and, on September 1, 1871, the balance due Winslow Brothers from the firm was $ 17,903, and the property belonging to A. Whitney & Company at that date, independently of the mill and machinery, amounted to $ 18,169. Thereupon Winslow Brothers notified Whitney in writing, that they would no longer continue the copartnership, and an agreement was entered into, that Whitney should buy the interest of Winslow Brothers in the property, and pay therefor the said sum of $ 17,903 in instalments of $ 1000 per month. No bill of sale was made to Whitney by Winslow Brothers, and no charge of this property was made on the book of Winslow Brothers to Whitney, and the account against A. Whitney & Company in their books was continued, charging and crediting to that account, as occasion required, in the same manner as they had done before the alleged termination of the copartnership, and the correspondence between them was always conducted in the name of A. Whitney & Company. During this time, Winslow Brothers made advances of money and materials to Whitney, which were charged to the same account. Whitney continued the business at Ashburnham under the name of A. Whitney & Company, and continued to send finished leather to Winslow Brothers, until the balance of $ 17,903 due from him was thereby paid, some time in 1874. Whitney then agreed to buy the interest of Winslow Brothers in the real estate for $ 4000, and to finish leather for them in payment. The whole sum was thus paid about April 29, 1876, and Winslow Brothers, at the request of Whitney, conveyed their interest in the real estate to a brother of Whitney, but the deed was not recorded till October 1877. No charge or entry was made upon the books of Winslow Brothers showing this sale, but they continued to charge upon the account of A. Whitney & Company the finishing of leather done by him for them until the sum of $ 4000 was paid. No public notice was ever given of the dissolution of the partnership, and there was no change in the name of the firm or in the manner of carrying on the business, so far as the public was concerned, and Whitney continued to carry it on at Ashburnham under the name of A. Whitney & Company until his failure in June 1876.
In 1872, the plaintiff began to indorse the notes of A. Whitney & Company at the request of Whitney, and continued to do so from time to time until the indorsements of the notes in suit. These indorsements were made at the request of Whitney and the plaintiff testified that he indorsed the notes at his request, and upon his...
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