In re Wyatt

BARRETT, J.

But little need be added to the opinion of the learned referee in this matter. Upon the main question his findings of fact are justified by the evidence, and his conclusions of law are properly deducible from the facts so found. We think it clear that the claim made by Rawitzer & Bros, against the special partnership is not sustained. A discussion of the abstract question when, and under what circumstances, a new firm organized as the successor of an existing firm will be held liable for the debts of its predecessor would be quite unprofitable; for upon the facts there is no basis for the application of any known rule of law under which the present claiin could possibly be sustained. The referee has found that neither the new firm nor the new partner ever agreed to assume the liabilities of the old, or to guaranty the payment of its debts; that the goods which the claimants had consigned to the old firm never came into the possession of the new; that such goods were hypothecated by the old firm, and thus converted; and that none of the moneys which were received by the old firm upon such hypothecation ever came into the possession of the new. These facts are conclusive against the present claim, in any view of the law. The claimants rely mainly upon the fact that, after the formation óf the new firm, a stock account was rendered to them, indicating the possession by the new firm of the very goods which had been previously hypothecated. This, however, was nothing more than a false and unauthorized statement made by the general partner without the knowledge of the special partner. The firm was certainly not bound thereby. 2ior was it estopped from showing the real fact, which was that the goods were not in its possession, and never had been. Some loose declarations of the special partner, Mr. ¡Newhall, made prior to the formation of the new firm, were also given in evidence, but they were far from constituting a contract or agreement, even individually, to guaranty or become responsible for the debts of the old firm. They could have no binding effect upon the new firm, which was then only in contemplation. Mr. ¡Newhall could not then contract on its behalf, and he did not profess to do so. Upon the main question the order is clearly right, and should be affirmed.

We think, however, that the learned referee erred in deciding that the new firm paid to the claimants the sum of $12,500, for which it should have credit. Without going over the figures and testimony in extenso, we think it apparent that the learned referee was misled by the fact that five acceptances which were given by the old firm, but which fell due after -the formation of the new, were paid by the new. These acceptances were the obligations of the old firm, and not of the new. Their payment, therefore, was a payment pro tanto of the debt of the old firm, and was not a payment made by the new on account of its own obligations and conceded indebtedness. We think Mr. Horwitz has clearly and ably demonstrated this in his fourth point. But we do not agree with Mr. Horwitz’s analysis of the referee’s twenty-fifth finding, and we find nothing in the evidence nor in the finding itself to justify his criticism thereupon. The report should be modified by finding that Rawitzer & Bros, have proved their claim, against the assets in the hands of the receiver to the amount of $28,229.41, and, as so modified, it should be affirmed, without costs. All concur.