Conrow v. Gravenstine , 1 Sadler 480 ( 1886 )

Opinion by

Mr: Justice Oreen :

The question before us‘is simply- whether- the plaintiff was entitled to judgment notwithstanding the affidavit of defense filed. . He is an indorsee of negotiable -paper, presumably -for value and Before maturity. There is nothing averred- in the affidavit which touches him personally or impugns the good faith of his title. The defense, that Conrow was a special partner might avail if the facts necessary to sustain that defense were set forth in the affidavit. But they are not. A fatal omis'sion is that the positive requirements of the act of 1865 in relation to' limited partnerships are not averred, as having been complied with. The second section of the act of March '30, 1865, jirovides' aS follows: “But the'said partnership shall put up, upon some conspicuous place on the outside and in front of the building in which it has its chief place of- business, some sign on which shall be painted in legible English characters, all the names in .full, of all the members of .said parnership, stating who are general and who are special partners.”

In order that a partnership shall be a limited partnership under the acts relating to. that subject, the provisions of the laws .which authqrize their creation must be strictly complied with. If they are not, the partnerships thus 'sought to' bé 'crfeated simply fail t® become special and remain general. " Such is the case ■here. The note in suit is signed “Wm. H. Brown & Co.” The defendant is a .member of that firm. Although' the- affidavit of defense alleges that. he was’ only á special partner, and avers compliance with some of the requirements of the -law, it omits the very important one which directs the exhibition of the sign, and we are therefore unable to say that the partnership is special. If all the facts set forth in,the affidávit of defense were proved on the trial precisely as they áre stated, they would not make out a case of special partnership so as to relieve the 'defendant from liability as a- general partner, and therefore the ver diet would' nécessarily be rendered against him. In, this state of the record it was the duty of the court.below to enter judgment for want of a sufficient affidavit of defense, which was done, and we cannot say there was any error in so doing. •

Judgment affirmed.