the said factory, or of interfering or intermeddling with the same in any way or manner whatever. In other words he asked a decree, which should transfer the entire business to him. The defendants might, with much greater show of reason demand that the court should enforce the provision of the original articles against the plaintiff as a retiring partner, and require him upon an appraisement to assign all his interest to them. The court below did not make such a decree as the plaintiff asked, but on the ground that the letter of January 25, 1866, was a dissolution of the partnership and terminated the lease, they directed an appraisement of the building and improvements on the lot held under it, and the delivery of them to the plaintiff, and appointed a receiver to wind up the affairs of the concern. Practically there would not be much difference between the decree prayed for and that granted. The possession of the oil factory and its fixtures and appurtenances would be possession of the business. The duty of the receiver would only be to sell the stock of oil, material and tools on hand, and collect the outstanding debts. We deem it our right and our duty to hold the scales of justice more equally between these brothers, to give to each party the right to bid for the business and estate of the partnership, and then to award it to the highest bidder. We have made a decree accordingly.

The decree of the Court of Common Pleas of Montgomery County is reversed, and now it is ordered and decreed that on the dissolution of the said firm of Slemmer Brothers, as hereinafter declared, all the estate and assets of the partnership, including the unexpired term of the lease of the premises on which the factory is erected, and the buildings and improvements thereon, shall be assigned and transferred to that one or more of the said partners, who shall offer to pay or secure to be paid within a reasonable time the highest price for the same; and that the record of this case be remitted to the Court of Common Pleas of Montgomery County, with direction to carry this decree into effect, and for that purpose to make all necessary orders and references for the purpose of settling and adjusting the accounts between the parties, and making a final decree therein; and upon such assign ment and transfer being made, in pursuance of the order of the

court, then that the said partnership shall be thenceforth dissolved. Both parties to pay their own costs in the court below, and in this court, and the costs of the subsequent proceedings to be paid from the assets of the partnership.

BABCOCK V. STEWART.

(58 Pennsylvania State, 179. Supreme Court, 1868.)

'Liability of incoming partner. An incoming partner is not liable on the contracts and engagements of the firm entered into before he became a member of it.

New partners in oil lease-Quantum meruit. A and B purchased an interest in an oil lease; shortly afterward, C and D became partners with them, and these four employed E as overseer with a joint interest; E hired F to work by the day in sinking a well. After he commenced work, three new partners came into the concern. Against these eight persons F brought suit for his wages: Held, that the partners who came into the concern after the contract had been made were not liable upon the contract, and that the mode in which interests in oil leases were sold, divided and subdivided, while work was going on, could not alter the rule; but that the new partners would be liable upon a quantum meruit for work done after they came into the firm. Liability personal to the debtor. Those who have sold goods or done work on the credit of the original partners and have no lien, have parted with all their interest in the effects, and can look only personally to those with whom they have contracted.

The ground of liability of one partner for the acts of the others, is that of an implied general agency within the scope of the partnership.

Error to the Court of Common Pleas of Warren County.

This was an action of assumpsit brought February 22, 1867, by Daniel Stewart against W. P. Shaw, Irvine Eddy, James McGee, Henri Hall, Barber Babcock and John R. Robertson, who survived Sherman Garfield, doing business as Babcock, Hall & Co.

In the early part of 1865, Shaw and Hall purchased an interest in an oil lease; shortly afterward Eddy and McGee became jointly interested with them, and they all agreed with

1 Kountz v. Holthouse, 85 Pa. St. 235; Atwood v. Lockhart, 4 McLean 350; Carter v. Whalley, 11 M. R. 262.

Babcock to oversee the business, he to have a joint interest in consideration of taking charge of the work. In prosecuting the work, Babcock, on the 1st of August, 1865, hired Stewart at $3 per day to work at sinking a well on the premises of the five, who were then partners. Stewart worked eighty-eight days in pursuance of his contract. After Babcock had been taken into the concern, and after the contract with Stewart, Robertson and Garfield purchased interests in the concern, and became joint owners with the other five. This suit was brought by the plaintiff against all the joint owners in the form above stated to recover his wages.

The defendants asked the court to charge:

"That if some of the joint owners sold their respective interests or portions thereof to other parties after the arrangement was made by Babcock to sink the wells, and before plaintiff commenced work on the 1st of August, 1865, there is no authority in Babcock to contract for those who purchased their interests after the contract with Babcock was made."

The court (VINCENT, A. J.,) answered: "We affirm this in part, with an explanation. Babcock could not bind one who was not a joint owner when the plaintiff began work, nor afterward; but he could bind those who came in while the work was being performed, or who had only parted with a portion of their interest before it began or during its progress. The manner in which oil interests were sold, divided and subdivided, while work was going on, would render it impossible for a creditor to collect his debt if he was compelled to begin a new account with every change of ownership made while his work was being done or his account against the company being contracted."

The verdict was for plaintiff for $296.12.

The defendants took a writ of error and assigned for error the answer to their point.

R. BROWN, for plaintiffs in error,

W. D. BROWN, for defendant in error.

SHARSWOOD, J., delivered the opinion of the court.

Nothing is better settled than that an incoming partner

is

not liable on the contracts and engagements of the firm entered into before he became a member of it; Collyer on Partnership, 8520. The plaintiff in error was therefore entitled to have his second point affirmed. The court below did affirm it, but accompanied the affirmance with an explanation, which entirely destroyed its effect. They said: "Babcock could not bind one who was not a joint owner when the plaintiff began work or afterward, but he could bind those who came in while the work was being performed, or who had only parted with a portion of his interest before it began or during its progress." From what follows we may conclude. that the court considered that owing to the manner in which oil interests were sold, divided and subdivided, while work was going on, a different rule was applicable to partnerships in that region. In this there was error. As was said by Lord Kenyon, in Shirreff v. Wilks, 1 East, 48, "It is hard enough for one partner in any case to be able to bind another without his knowledge or consent; but it would be carrying the liability of partners for each other's acts to a most unjust extent if we suffered a new partner to be bound in this manner for an old debt incurred by other persons." When a man purchases on interest in a firm, he can inform himself as to what are its assets and the then condition of its works. He is not bound to inquire whether all its property in possession has been paid for. Those who have sold or delivered goods, or done work on the credit of the original partners, having by law no lien, have parted with all their interest in the effects and can look only personally to those with whom they have contracted. The credit of the new member of the firm did not enter into their consideration in making the contract, and it would be manifestly unjust to hold him liable to them. The ground of liability of one partner for the acts of the others is that of an implied general agency within the scope of the partnership. The law of partnership is but a branch of the law of principal and agent. As was said by Lord Cranworth in Cor v. Hickman, 8 H. L. Cas. 268, "The real ground of liability (as a partner) is that the trade has been carried on by persons acting on his behalf (that is, of the person sought to be made liable), so that he would stand in the relation of principal toward the persons acting ostensibly as the traders, by

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whom the liabilities have been incurred, and under whose managements the profits have been made." Bullen v. Sharp, L. R. 1 C. P. 86; Feigley v. Sponeberger, 5 W. & S. 564. If, therefore, any one of the defendants was not a member of the firm when the contract was made, it is evident this ground of liability does not exist. There can be no pretense or implication that the contracting part was then his agent.

Had the explanation of the court below been that for whatever work was done by the plaintiff after the new partnership had been formed, though under the old contract, the benefit of which had been received and enjoyed by the new firm, he could recover on the quantum meruit count in the declaration, it would have been entirely unexceptionable; but under the instruction as given to the jury in the answer, they may have included we know not how much work previously done.

Judgment reversed and venire facias de novo awarded.

KIRK V. HARTMAN & Co.

(63 Pennsylvania State, 97. Supreme Court, 1869.)

Special partners. In a suit against two as partners on contract, the ques tion would be whether they were partners in that contract. Whether they were general partners is immaterial.

66

Agent-Annual hiring. A written contract by which a party is employed "to act as agent or salesman for stock," etc., of a coal company, to be paid $3,000 in equal quarterly payments," is a hiring for a year. Indefinite hiring. When one is employed as an agent, etc., for no definite time, it is a hiring at will of both parties, and he may be discharged without notice.

1 Holding out as partner. If one holds himself out, or knowingly suffers himself to be held out, as a partner, on the faith of which others trust or enter into a contract with the firm, he is responsible, although not a partner. Office of estoppel. Estoppels shut the mouth of a party, whether his origi nal act or declaration was intended to deceive or not.

Evidence to vary written contract. Evidence of declarations of a party to a written contract at an indefinite time prior to it, is not admissible to

introduce a new term into the contract.

Evidence of negligence of agent. Evidence that other agents in similar business at the same places did much more business than the plaintiff, is not admissible to prove his negligence or default.

1Martyn v. Gray, 14 Com. B. N. S. 824.