
    Henry Speer v. Richard M. Bishop et al., Partners as R. M. Bishop & Co.
    1. A copartnership, consisting of a father and son, carried on business under the firm name of H. S. & Co., H. S., the father, who was a man of means, and gave the firm its credit, sold his interest in the firm to his partner and another son, who, by agreement with the father, continued the business as theretofore in the firm name of H. S. & Co. Ia an action by a creditor who had trusted the new firm on the faith that the father was a member: Held, That the father, by allowing his name-to be so used, held himself out as a member of the new firm, and was-thereby estopped from denying the fact, although publication had been, made of the dissolution of the old and the formation of the new firm, of which the creditor had, in fact, no notice.
    2. An objection on the ground of variance between the proof and the pleading, should be taken on the trial. Where this has not been done, it is-too late, on error, to make the objection.
    Motion for leave to file a petition in error to reverse the-judgment of the Superior Court of Cincinnati.
    Richard M. Bishop et al., partners as R. M. Bishop & Co., filed their petition, in the Superior Court of Cincinnati, against Henry Speer, Edward D. Speer, and James-H. Speer, late partners, doing business under the name of Henry Speer & Co., to recover upon an account for goods-sold and delivered by the plaintiffs to the defendants.
    Henry Speer, in his answer, denied that he was a member of the firm of Henry Speer & Co. at the time of the-sale of the goods.
    The parties waiving a jury, the case was submitted to-the court for trial. The court found for the plaintiffs, and a motion for a new trial having been overruled, rendered judgment accordingly.
    To the overruling of the motion for a new trial, Henry Speer excepted, and took a bill of exceptions, embodying, the evidence. He now asks leave to file a petition in error to reverse the judgment.
    The facts are sufficiently stated in the opinion.
    
      
      Me Guffey, Morrill $ Strunk, for the motion:
    I. The evidence must correspond with the allegations, and he confined to the point in issue, and a material variance between the allegations and joro'of in connection with a pleading is fatal. Ohio Civil Code, secs. 131, 132.
    As the- pleadings stand, the judgment in effect finds Henry Speer a partner, while the evidence shows he was not, and he is entitled to have the judgment set. aside, if for no other reason, lest it should be used against him in other suits involving the question of his partnershij). 1 Greenl. on Ev. 75.
    II. As to new customers, constructive notice by publication, of the dissolution of a firm, is sufficient, and this the plaintiffs below had. Story on Partnership, sec. 160; Clapp v. Rogers, 2 N. Y. 283; Vernon v. Manufacturing Co., 22 Wend. 183; Graves v. Merry, 6 Cow. 701; Lansing v. Gaines, 2 Johns. 300; Palmer v. Lodge, 4 Ohio St. 28; Godfrey v. Trumbull, 1 Esp. 371; Parker v. Carruthers, 3 Esp. 248; Graham v. Thompson, Peake, 42; Chitty on Bills, 62; Godfrey v. McCauley, Peake, 155; Munn v. Baker, 2 Stark. 255; Story on Part. 279; Jenkins v. Blizzard, 1 Stark. 418; Bank of South Carolina v. Humphreys, 1 McCord, 388; Barefoot v. Goodell, 3 Camp. 147; 1 Esp. 391; 1 Stark. 375; 1 Peake, 375; 2 Camp. 617; Parsons on Part. 412, 419.
    III. A firm name ordinarily signifies nothing or little, as to who are the members of the firm. Banks v. Gibson, 34 Beav. 566; 3 Sevant Ch. 490; 7 Sim. 421; Cones v. Morse, 18 How. Pr. 421; Kerr on Injunctions, 117; Austin v. Boys, 2 B. & J. 626; Blissett v. Daniels, 10 Hare, 478; Parsons on Part. 406.
    In order to estop Henry Speer from denying that he was a partner, these facts, we think, must concur:
    1. The holding out must be of the individual name, and by the party, or his authority, sought to be charged.
    2. It must be relied on, and be to the party relying thereon, and not merely to the world generally.
    3. The representations or holding out must have been 
      intended, by the party charged, to influence the party giving the credit, in the way it is claimed it did. Dickinson v. Valpy, 10 Barn. & C. 128-144; Fox v. Clifton, 6 Bing. 776; Edmunson v. Thompson et al., 8 Jurist (N. S.), 235; Boyd v. McCann, 10 Md. 118; Newsome v. Coles, 2 Camp. 617; McAfferty v. Conoxer, 9 Ohio St. 99.
    
      Simrall Sf Hosea, contra:
    1. A holding out of one’s self as a partner fixes liability as such. Matthews on Part. 16, sec. 35; Parsons on Part. 119, 411, 87; Williams v. Keats, 2 Stark. 290; Hicks v. Crane, 17 Vt. 449; Buckingham v. Burgess, 3 McLean, 364, 549; Parker v. Barker, 1 Brod. & Bing. 9; 3 Moore, 226; Newsome v. Coles, 2 Camp. 617; Waite v. Brewster, 31 Vt. 516; Collyer on Part., sec. 97; Fox v. Clifton, 6 Bing. 776; 6 M. & W. 461.
    2. Permissive use of one’s name in the firm constitutes ■such holding out as to fix liability. There was permissive use in this case. Parsons on Part. 413, 414; Mulford v. Griffin, 1 Poster & Fonlanson, 145; Faldo v. Griffin, Ib. 147; Brown v. Leonard, 2 Chitty, 120; Williams v. Keats, 2 Stark. 290; Dolman v. Orchard, 2 Car. & P. 104; Stables v. Elley, 1 Car. & P. 614; Jenkins v. Blizzard, 1 Stark. 418; Reber v. Col. Mach. Manuf. Co., 12 Ohio St. 175, 178; Story on Part., secs. 160, 160a, note 2.
    3. What notice is required to excuse liability, the facts being all found, is a question of law for the court. Story on Part., sec. 161; Parsons on Part. 417; Collyer on Part., sec. 534.
    It is not enough that the paper containing the notice was -delivered at his house or even came to his hand. Parsons on Part. 419; Vernon v. Manhattan Co., 17 Wend. 526; Boyd v. Cann, 10 Md. 118; Watkinson v. Bank of Pennsylvania, 4 Whart. 482; Hutchins v. Bank of Pennsylvania, 8 Humph. 418.
    No matter what notice is given of a partner’s retirement, if he still retains his name in the firm; until his name is removed, he will be liable for partnership contracts. Lindley on Part. 414, 415; Collyer on Part., sec. 535; 3 Kent Com., sec. 168; Williams v. Keats, 2 Stark. 290; Brown v. Leonard, 2 Chitty, 120; Stables v. Elley, 1 Car. & P. 614; Dolman v. Orchard, 2 Car. & P. 104.
    4. Henry Speer is estopped from denying his liability. Lindley on Part. 51, 53, 58, 59; Pickard v. Sears, 6 Ad. & El. 469; Griggs v. Wells, 10 Ib. 90; Freeman v. Cooke, 2 Exch. 654; Cornish v. Abington, 4 Hurlston & Norman, 556; Swan v. N. Brit. Australian Co., 7 H. & W. 633; 28 Maine, 525.
   White, J.

Wé see no ground in this case for disturbing •the judgment of the court below. Henry Speer, the plaintiff in error, and his son, Edward D. Speer, carried, •on business as copartners from 1866 to June 1,1871, under the firm name of Henry Speer & Co. Until late in the year 1868, their place of business was Cincinnati. At that time they removed to Brookville, Indiana; but, after removing to Brookville, they still kept an office open for the transaction of business in Cincinnati. The firm had acquired a good reputation for pecuniary responsibility and for promptitude in meeting its obligations. Henry Speer was a man of means and gave the firm its credit.

On the 1st of June, 1871, Henry Speer sold his interest in the firm to his partner and another son, James H. Speer, the two sons, by agreement with the father, continuing the business as theretofore, in the firm name of Henry Speer & ■Co. Notice was published in the same month of June, both in Brookville and Cincinnati, of the dissolution of the old and the formation of the new firm. After the dissolution, it appears Henry Speer had no interest in the new firm. In the following January, the new firm, in the name ■of Henry Speer & Co., purchased of Bishop & Co., merchants in Cincinnati, the goods for the price of which the .suit was brought. There had been no previous dealings between the plaintiffs, Bishop & Co., and either the old or new firm of Henry Speer & Co.

From the evidence, the court was warranted in finding that Bishop & Co. had no notice of the dissolution of the old firm, and that they sold the goods in question on the faith that Henry Speer continued to be a member of the firm.

The foregoing are the only facts we deem it material to notice.

The fair inference to be drawn, it seems to us, from the fact that the father allowed his name to be continued as an ostensible member of the firm, is, that he intended to give to his son the benefit, with the public, of his credit. To the extent, therefore, that third persons were induced to trust the new firm on the faith that he was a member, he ought, upon the principles of good faith, to be estopped from denying the fact. His consent to such use of his name was, in effect, a continuing representation to those ignorant of the facts, that he was one of the firm.

It is also claimed that the estoppel can not be made available under the issue. On the trial, the plaintiffs’ evidence made a prima facie case. The defendant, to rebut the case thus made, gave evidence to show the dissolution of the old firm; but, in doing so, he showed a state of fact, when taken in connection with the case already made, that required him to be estopped, as against the plaintiffs, from availing himself of the dissolution as a defense. No question of variance between the proof and the pleading was raised at the trial. In such casé, it is too late on error to make the objection.

Leave refused.

Day, C. J., McIlvaine, Welch, and Rex, JJ., concurring.  