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Rector of the Holy Innocents v.
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Union India Rubber Co., Rider et
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Note.-It is due to the history of these reports and to Mr. JUSTICE WOODRUFF
to state, that this volume has been wholly edited by him, excepting the preparation
HOLDANE et al., Plaintiffs and Appellants, v. BUTTERWORTH,
1. Where a person (B.) is in partnership with another (T.) in a business described as the business of “The Atlantic Forge Company," but in which the correspondence is conducted and all contracts made in the name of T., (the name of B. in no manner appearing in the business,) and thereafter the firm is dissolved, and a new partnership is formed by T., the co-partner, and a third person, under a different name, to conduct the same business at the same place, and the partners in such new firm immediately send a notice of that fact. signed by them, by post, to all who had dealt with the old firm, and subsequently a vendor who had never dealt with the old firm, makes a sale of goods on credit, nominally, to such former co-partner, T., in whose name the business of the old firm had been done, and takes a note signed by the new firm in its true name, he cannot charge the person, so retiring, as a continuing partner, although he knew by common notoriety that the person so retiring had been a partner, and supposed that he then was, provided it was also a matter of public notoriety, on and after the formation of the new firm, that it had been formed by such copartner and third person, in a new name, and that it had in fact transacted its business in such new name.
Holdane et al. v. Butterworth.
2. Where the facts specially found entitle a defendant to a general verdict, . the plaintiff will not be entitled to a new trial because portions of the charge may have been erroneous, when such portions of the charge could not possibly affect the minds of the jury in considering the evidence relating to or in determining such special facts. (Before Bosworth, Ch. J., and HOFFMAN and MoxcRIEF, J. J.)
Heard, April 15; decided, May 14, 1859.
This is an appeal by the plaintiffs (John H. and James H. Holdane) from a judgment entered on a verdict in favor of the defendant, (John F. Butterworth,) rendered at a trial had before Mr. Justice SLOSSON and a jury, in March, 1858. Charles H. Tupper and Wesley M. Lee were also named as defendants, but neither of them was served with the summons or appeared in the action.
The complaint states that the defendants on the 10th of October, 1855, were partners under the name or style of C. H. Tupper, or C. H. Tupper & Lee, at the building usually known as the Atlantic Forge, No. 268 Eleventh street," in New York city.
That on that day the plaintiffs, being partners, composing the firm of Holdane & Co., sold and delivered to the defendants ninety-one pieces of iron, for the price of $659.22, on a credit of six months, for which the defendants have not paid.
The answer denied the allegations of the complaint.
On the trial it was proved, that for several years prior to March, 1855, the defendants Butterworth and Lee were partners and did business at No. 268 Eleventh street, under the firm name of the Atlantic Forge Company. That Butterworth was its capitalist, but transacted individual business at the Merchants’ Exchange, two and a half or three miles distant, and was at No. 268 Eleventh street only occasionally, sometimes once a week, and sometimes not in three or four months. The correspondence of the firm was conducted and its notes and contracts were signed in the name of Charles H. Tupper alone. The name, Charles H. Tupper, at the time of the trial, and for several years previously, was placed conspicuously on a large sign on the top of the building, the whole length of the roof, and the words " Atlantic Forge" were painted conspicuously on the same building.
Tupper & Butterworth did no business after the first of January, 1855; they dissolved partnership prior to March of that