Taggart v. Phelps , 10 Vt. 318 ( 1838 )

The opinion of the Court was delivered by

Phelps, J.

The case of Loomis v. Barret, is good law; yet, we do not consider the principle of that case applicable here. When the claim of the plaintiff, which is now contested, began to accrue, it was, without a question, a claim against the defendant alone ; and the plaintiff was not only justified in charging to him, but could legally charge nobody else. While the account was thus running, it appears that the defendant took in a partner in his business, but whether that partner was, by the contract, to be responsible to the plaintiff, for the driver’s board, does not appear. For aught disclosed the defendant was still solely liable to the plaintiff and whether this expense was ever a subject of accounting between the two partners, or an outgo to be sustained by the defendant alone, is a question depending upon the terms of the partnership, with respect to which we are not informed. Before we can exclude this charge from consideration in this case, it must be made to appear affirmatively that it com stitutes a claim against the two partners jointly.

In order to conclude the plaintiff, with respect to it, it is necessary to show, not only that it does constitute such a claim, (a question depending, as already suggested, upon the terms of the partnership) but further, that the plaintiff had knowledge of such facts, as rendered it imperative upon him to change his mode of charging. No such knowledge is disclosed by the case. He was, indeed, advised of the fact of the partnership, but this only from common report. We think, therefore, that the plaintiff was justified in continuing to charge as he began, until notice from the defendant to vary his course, or at least, until advised of a state of facts which rendered a new course/necessary.

Judgment affirmed.