retains the appearance of being indicative. In that case Archer was liable because

"he had imprudently suffered notice to be given of the continuance of the partnership, by permitting his name to remain on the door." 1

The distinction between historic and indicative names was altogether overlooked in Re Fraser. From the firm of "W. & J. Fraser" the J. retired; the old name was continued; afterwards certain bankers discounted a bill accepted by "W. & J. Fraser," and sued the J. member upon it. They were beaten, Kay, L. J., saying that Newsome v. Coles showed that carrying on the business in the old name did not

"amount to a representation by him to the bank that he, John Fraser, was a partner in the firm."

Lord Esher said that there was no evidence of any holding out by John Fraser to the petitioning creditors:

"If they had dealt with the old firm, and had no notice of the dissolution of partnership, the case would be entirely different."

But it is immaterial, as we have seen, whether the case is one of a new or an old dealer, if the creditor had had knowledge of the constitution of the firm. And so the case would be reduced to one of fact, in which respect it is defectively reported. It suggests this question, however: whether if an indicative name be continued and people be misled, it is a sufficient answer to say that notice of the dissolution was advertised in the Gazette-whether an official and never-read notice of a dissolution will outweigh the constant and obtrusive assertion that there was none?

II. MISREPRESENTATION BY THE DEFENDANT.

Discussion in a previous chapter of one of the prime requisites of estoppel,

"the misrepresentation must be made either (1) by the estoppel-denier (Personal Misrepresentation), or (2) by some person whose misrepresentation the estoppel-denier has made credible (Assisted Misrepresentation)," renders it unnecessary to say much here upon a point that a priori seems to be sufficiently clear, namely, that a misrepresentation which will estop must be one for which the defendant is responsible. It may be pointed out, however, that the

1 Williams v. Keats (1817), 2 Stark. 290; Dolman v. Orchard (1825), 2 C. & P. 184; Evans v. Hadfield (1896), 93 Wis. 665; 68 N. W. R. 468.

2(1892) 2 Q. B. 633,

3 Ch. III.

assertion that a man cannot be estopped from denying membership in a firm merely because some other person chooses to represent him as such, includes the case of the misrepresentation being made by the real members of the firm, who are as little capable as other people of binding the defendant by their falsehoods. According to the language of the Imperial Statute 2 it is

"every one who by words spoken or written, or by conduct, represents himself, or who knowingly suffers himself to be represented, as a partner in a particular firm,"

that is liable. The necessity for bringing the representation home to the defendant is illustrated in the holding that he cannot be estopped by what takes place after his death. Suppose that a partner dies; that the continuing partners give no notice of dissolution; and that the old firm name (possibly the name of the deceased) is flamingly continued; nevertheless the decedent's estate is not liable.3

III. MISREPRESENTATION TO THE PLAINTIFF.

One of the essential conditions of estoppel is that

"the estoppel-asserter must be a person to whom immediately or mediately the misrepresentation was made." 4

It need not, however, surprise us to find that prior to the development of the law of estoppel this point was not always insisted upon.

"Formerly it was considered sufficient if the party was held out to the world as a member of the firm or company; now, however, it is necessary that there should be direct evidence that the holding out had come to the knowledge of the plaintiff; he need not hear or see the defendant's conduct; it is enough if the fact has come to his knowledge."5

Indirect Misrepresentation.— In one case too much stress was laid upon the necessity for distinct authority from the

Martyn v. Gray (1863), 14 C. B. N. S. 839. And see Shott v. Streatfield (1830), 1 M. & Rob. 8; McLean v. Clark (1893), 20 Ont. App. 671; Holman v. Herscher (1891), 16 S. W. R. 984 (Tex.); Burrows v. Grover (1897).

1 Even if advertised. First Nat. Bank v. Cody (1894), 93 Ga. 127; 19 S. E. R. 831. See also Fox v. Clifton (1830), 8 L. J. C. P. 261; Marschall v. Aikin (1897), 170 Mass. 3; 48 N. E. R. 845. 253 & 54 Vic. (Imp.), ch. 39. § 14 (1); 41 S. W. R. 822 (Tex.); Marschall v. 60 Vic. (Man.), ch. 24, § 14 (1).

3 Webster v. Webster (1791), 3 Sw. 490; Vulliamy v. Noble (1817), 3 Mer. 614. And see the Imp. St., 53 & 54 Vic., ch. 39, § 14 (2), 36 (3); 60 Vic. (Man.), ch. 24, same sections. 4 Ante, ch. X.

Aikin (1897), 70 Mass. 3; 48 N. E. R. 845; Norfinger v. Goldman (1898), 122 Cal. 609; 54 Pac. R. 425; Thornton v. McDonald (1899), 33 S. E. R. 680 (Ga.).

6 Edmonson v. Thompson (1862), 2 Fos. & F. 564; 31 L. J. Ex. 207. And

7

plaintiff in order that he might be bound by a representation made by another person. The defendant had represented himself to be a partner to various persons; but neither he nor such persons had made any representation to the plaintiff thus far no estoppel. A real member of the firm, however, had made representations to the plaintiff; but did so without authority from the defendant - and again it was said that there was no estoppel.

But the cases do not usually proceed upon the law of principal and agent, and the necessity for authority to transmit information; but upon this, rather, that the defendant has originated an impression which has in some way reached the plaintiff. And it might very well have been held in the case just referred to that if a man was accustomed to represent himself as a partner, such action would be sufficient evidence that he "knowingly suffered" the real members of the firm to do likewise. He could hardly expect them to contradict him. His own representation would of course be strong evidence against him of the fact of partnership;1 but that is a remark not pertinent to estoppel. The law may be taken to be that

"if the defendant informs A. B. that he is a partner in a commercial establishment, and A. B. informs the plaintiff; and the plaintiff, believing the defendant to be a member of the firm, supplies goods to them, the defendant is liable." "2

The case mentions but leaves undecided the question whether if the estoppel-denier, instead of informing A. B. that he is a partner, does acts from which A. B. fairly draws that inference; and A. B. either communicates his information to the estoppel-asserter or informs him that the estoppel-denier is a partner whether, in such case, there is a sufficient holding out. It is submitted that there is, and that the dictum of Erle, C. J., in the same case is correct:

"He need not hear or see the defendant's conduct; it is enough if the fact has come to his knowledge."

The Imperial Statute declares for liability

"whether the representation has or has not been made or communicated to the person so giving credit, by or with the knowledge of the apparent partner making the representation or suffering it to be made." 3

see Armstrong v. Potter (1894), 103 S. 841. And see Shott v. Streatfield Mich. 409; 61 N. W. R. 657. (1830), 1 M. & Rob. 8: Quirk v. Thomas (1858), 6 Mich. 76, 119; Rimel v. Hayes (1884), 83 Mo. 208.

McNeilan's Estate (1894), 16 Pa. Co. Ct. R. 46. Affirmed in 167 Pa. St. 473; 31 Atl. R. 727.

353 & 54 Vic. (Imp.), ch. 39, § 14 (1).

2 Martyn v. Gray (1863), 14 C. B. N. And see 60 Vic. (Man.), ch. 24, § 14 (1).

The expression held out "to the world," although now usually repudiated, still retains something of its influence, and necessitates some careful distinguishings. For example, in a quotation upon a previous page 2 it is said

"that there should be direct evidence that the holding out had come to the knowledge of the plaintiff."

But sometimes it is thought that if the holding out were sufficiently public, direct evidence would be unnecessary; and this seems to be coming back to the statement that if a man be held out “to the world" as a partner he is liable. But it is not so. The law remains that there must be proof that "the holding out had come to the knowledge of the plaintiff;" and all that is asserted is that

"there may be cases in which the holding out has been so public and so long continued that the jury may infer that one dealing with the partnership knew it and relied upon it, without direct testimony to that effect. The nature and amount of evidence requisite to satisfy the jury may vary according to circumstances. But the rule of law is always the same, that one who had no knowledge or belief that the defendant was held out as a partner, and did nothing on the faith of such a knowledge or belief, cannot charge him with liability as a partner, if he was not a partner in fact." 3

It is sometimes loosely asserted, too, that if a retiring partner allows his name to continue to appear. in this way to hold himself out to the world - he will be liable for the subsequent debts of the firm. The law is more accurately stated as follows:

"A partner withdrawing from a firm must see to it that his name is removed from the business signs in front of the establishment, or persons relying upon such signs as evidence of the firm's continuation and knowing nothing to the contrary are entitled to recover for all goods parted with on the faith of the partnership relation." 4

It has been pointed out that one who has previously dealt with a firm is entitled to treat all active partners "as still being members of the firm until he has notice of the change," whether such partners had or had not been "apparent members" to himthat is, whether he did or did not know of their membership. That statement, however, in no way conflicts with the rule that misrepresentation as to partnership must be made to the plaintiff; for the misrepresentation to him in such a case is that there has been no change in the constitution of the firm.

1 Mr. Parsons would continue it: Hefner v. Palmer (1873), 67 Ill. 163; On Partnership (4th ed.), 104.

2 Ante, p. 522.

3 Thompson v. First Nat. Bank (1883), 111 U. S. 537. And see Dickenson v. Valpy (1829), 10 B. & C. 140; Davis v. Allen (1849), 3 N. Y. 168;

Rizey v. James (1881), 26 Kan. 221; Braithwaite v. Power (1891), 1 N. D. 496; 48 N. W. R. 359.

4 Norquist v. Dalton (1890), 32 N. Y. 240; 11 N. Y. Supp. 351.

5 As to dormant partners, see infra.

IV. CREDIT UPON FAITH OF REPRESENTATION.

Knowledge of the Representation.-In order that a plaintiff may be able to say that he gave credit upon the faith of a representation it is clearly necessary that he should have known of it prior to his action; and believed it to be true; which of course includes that he did not know it to be untrue.3

It is because a representation cannot estop unless it be known, that a dormant partner cannot be estopped from denying partnership after his retirement from the firm. But the term "dormant partner" must be construed strictly, as

"one who takes no part in the business and whose connection with the business is unknown. Both secrecy and inactivity are implied by the word." 5

For if he chooses to throw off his character he may leave himself open to the estoppel which befalls other partners. And of course the retirement of a dormant partner will not relieve him from contracts already made, even if part of the consideration for the firm's promise be furnished after the dissolution."

Nature of the Representation.— Observe that what the plaintiff relies upon is the presence of the defendant in the firm, and, as a consequence, his being a party to the contract. It is not at all essential that the plaintiff should be able to establish that the defendant was a man of "financial ability," and so an important factor in the contract.8 Nor indeed that he should be able to swear that if the defendant had not been a partner he (the plaintiff) would not have sold the goods. All that is

1 Baird v. Planque (1856), 1 Fos. & F. 344; Rives v. Michaels (1896), 16 Misc. R. 57; 37 N. Y. Supp. 644; Stewart v. Brown (1898), 102 Ga. 836; 30 S. E. R. 264.

2 Pott v. Eyton (1846), 3 C. B. 32; 15 L. J. C. P. 257; Wright v. Fonda (1891), 44 Mo. App. 634.

3 McLean v. Clark (1893), 20 Ont. App. 660; Alderson v. Pope (1809), 1 Camp. 404, n.; Kraus v. Lutly (1894), 56 Ill. App. 506.

453 & 54 Vic. (Imp.), ch. 39, § 36 (3); 60 Vic. (Man.), ch. 60, § 36 (3); Farrar v. Deflinne (1844), 1 Car. & K. 580; McFarlane v. McHugh (1891), 12 Ohio Cir. Ct. 485; 1 Ohio C. D. 546; Pitkin

v. Benfer (1892), 50 Kan. 100; 31 Pac. R. 695; Milmo Nat. Bank v. Carter (1892), 1 Tex. Civ. App. 151; 20 S. W. R. 836; Gorman v. Davis (1896), 118 N. C. 370; 24 S. E. R. 770.

5 National v. Thomas (1871), 47 N. Y. 19.

6 Elmira v. Harris (1891), 124 N. Y. 280; 26 N. E. R. 541; Brown v. Foster (1894), 41 S. C. 118; 19 S. E. R. 299. 7 Court v. Berlin (1897), 2 Q. B. 396; 66 L. J. Q. B. 714. See 14 Law Quarterly Review, 5. And see ante, p. 247. 8 Strecker v. Conn (1883), 90 Ind.

469.

9 Libel v. Craddock (1888), 87 Ky. 525.