The sales on half profits did not create a partnership, but was a mode of ascertaining the compensation of defendants. (2 H. Black, 590; Sts. on Part. sec. 32 and note; secs. 36 and 43; 1 Stor. R. 371.)
There is no valid objection to the form of the action. (Paley on Agency, by Dunlap, 53 and note.) If erroneous, defendants should have demurred specially; after pleading, it is too late.
As copartners, the act of one was the act of both, and money received by one is received by both. (Collyer, sec. 422; 3 Nel. 114; Godfrey v. Sanders.)
The dissolution ofthe firm could not affect the rights of plaintiff until notice was brought home to him. The plaintiff arrived in San Francisco, in May, 1852, and then first received notice of the dissolution. Quoad, the plaintiff, the partnership continued down to the term of his arrival, and to this time the acts of either were the acts of both. (National Bank v. Norton, 1 Hill, 572.)
After the dissolution, the proceeds of all the sales went into the hands of Kellogg, who appealed on the ground that Totten, who had made default, was not liable. The plaintiff could have held Kellogg alone.
The merchandise from the Hurricane was consigned before, but arrived after, the dissolution, though before notice to plaintiff. Defendants jointly received, and jointly made sale of it, and divided the commission: they are, therefore, jointly liable; for the dissolution was inoperative without notice; and here was a joint undertaking, and, therefore, a joint liability. (Paley's Agency, by Dunlap, 52; Waugh v. Barber, 2 H. Bl. 235.)
The goods sold to Cheesboro were properly included in the recovery: the referee found that defendants received money or money's worth; they charged 2 per cent. per month, and, therefore, took a note, which, not having been produced, must have been paid. (1 Doug. 137, 138.)
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
The respondent urges that two sales, and receipts therefrom of money were made after the dissolution of the partnership, one by each partner, and that they were therefore not jointly liable. I am satisfied that notwithstanding the dissolution of the partnership, yet for the purpose of fulfilling engagements made during its existence, it had a limited existence legally, and subsisted for such purpose, even after the act of dissolution by the parties. (See Collyer on Part. 118.)
Independent of this position, it is positively shown that the plaintiff had no notice of the dissolution, which was absolutely necessary in order to change the character of the defendants' liability. To affect the rights of one dealing with a partnership firm, actual notice of its dissolution must be brought home to him. It is true that notice may be implied from circumstances, but in this case, it is shown positively that although the defendants took every necessary step to give the notice, yet it was impossible that the plaintiff could have received it.
Another objection is that the amount of a sale made on credit is charged to the defendants, which could not be done in this form of action, because if they had no right to sell on credit, they would only be liable for unskillful management, and not for money had and received.
We have arrived at a different conclusion. If the defendants had no right to sell on credit, as appears from the evidence, having the right to sell, the sale must be taken in reference to the rights of the plaintiff as having been for cash. To the defendants belong the demand which the sale created against their vendee, and they are liable to the plaintiff as for money had and received.
Judgment affirmed.