Stark v. Noble & Brother , 24 Iowa 71 ( 1867 )

Beck, J.

1.partnertractr'transfer of good will. I. The sale of the goods, on the part of Stark & Clapp, was a partnership contract, binding upon both members of the firm. The transfer of the “good will” of their business, and the under- , . ... . , taking not to set up and maintain again the same business, was a part of the contract, for the violation of which, by either or both of the parties, either or both are liable. The contract, was not an undertaking on the part of Stark to answer for the default of Clapp, but was a stipulation binding both, and to be performed by both. The failure of one to perform its conditions renders both liable. One of the partners, contracting for the firm in the presence of the other, had the power to make the contract, and it was binding upon the other, in the sense in which plaintiff had reason to believe defendants understood it. Regarding the seventh instruction given by the court, in the light of the evidence, to mean this, it is correct, and the first instruction asked by appellant was properly refused as irrelevant.

a. —breach after dissolution. II. The acts of Clapp, which are alleged to be the breach of the contract, were done after the dissolution of the firm, but the contract was entered into before such dissolution, ihe partners were liable after the dissolution upon the contract for the breach thereof, and as no objection was made in the court below, or is made here, to Stark’s separate liability upon the contract, the damages sustained by appellees on account of its breach are properly a set-off in the action on the note. Appellant’s second instruction was, therefore, properly refused by the court.

8. new triar : idence. III. The testimony upon the issue of the existence of the contract is conflicting, but we cannot conclude that the verdiet was not the result of a sound and honest exercise of judgment on the part of the jury.

The court below very properly refused to disturb the verdict.

Affirmed.