
    Emery B. Chace, App’lt, v. Susan Vanderwerf, Impl’d, etc., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Limitation — Partnership.
    The plea of the statute of limitations is not available to a retiring partner as against a firm debt which existed before the dissolution unless the creditor had notice of the dissolution more than six years before the commencement of the action.
    3. Same — Charge.
    _ The court, having charged the proper rule in respect to the statute of limitations, charged at defendant’s request that the remaining partner could not after dissolution bind the retiring partner by promise or part payment, and .that the dissolution was a revocation of his power to bind defendant by promise or part payment. Subsequently he charged that the question was merely whether plaintiff had notice of the dissolution. Held, that the error in the charge made on defendant’s request was cured by the final statement.
    Appeal from a judgment entered upon a verdict at the Monroe county court and from an order denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Fanning & Williams, for app’lt; E. F. Wellington, for resp’t.
   Macomber, J.

This action is brought to recover a balance claimed to be due and unpaid owing the plaintiff by the defendants for lumber sold and delivered to the defendants in the month of October, 1880. The whole amount of sales which were made by the plaintiff and his partner, Myers, was $2,616. The property was sold to the defendants as co-partners, who were doing business under the name of S. Yanderwerf & Son. This firm was dissolved about the 1st of January, 1882, by the retirement therefrom of the defendant, Susan Yanderwerf, who left all of the assets of the firm in the hands of the surviving partner, John Yanderwerf, the other defendant, who assumed all the debts and obligations of the firm then outstanding. Prior to the dissolution the sum of about $1,500 had been paid upon the original indebtedness to the firm of the plaintiff and his then partner. Payments thereon'were subsequently made by the defendant, John, in different sums during the years 1882, 1883 and 1884.

The defense interposed is the statute of limitations, and such defense is available to this defendant only upon the ground that the plaintiff had knowledge of the dissolution of the firm at, or about the time of such dissolution. This was the principal matter litigated at the trial. Evidence was given in behalf of the defendant, from which the jury could derive intelligently the conclusion that the fact of the dissolution was disclosed to the plaintiff orally and that he acted upon the same in subsequent dealings with John Yanderwerf. The fact of the communication by word of the dissolution of the firm is denied by the plaintiff, and an attempt was made by him to explain away the force of the circumstances arising from his subsequent dealings with John. But all of these matters made it a case pre-eminently one for the consideration of a jury, and they having found adversely to the plaintiff, the judgment should be affirmed unless some error was committed upon the trial which was detrimental to the rights of the plaintiff.

The learned county judge properly charged the rule of law governing the defense. In substance, he charged that if the plaintiff received the several payments from John with previous notice of the retirement of the defendant, Susan, from the firm, and the assumption by John of the indebtedness, the statute would run from the time of receiving such notice. In his charge he said: “And if six years had expired from the time of receiving such notice and the time of the commencing of the action, the debt would have been outlawed and the plaintiff could not recover, so this is a simple question for you to consider: Did Mr. Chace have notice of the fact that the firm had dissolved, and, if so, when? If he had notice of the fact at any time before the six years had expired before the commencing of this action, then the statute of limitations had run and he could not recover, but if he commenced the action at any time within six years, although he had notice, then he is not foreclosed from commencing this action.” He also charged “that if this last payment made by John Yanderwerf was received by Mr. Jones, without knowledge of the fact that this firm had been dissolved, then the statute of limitation would not run.” The original instructions of the county judge to the jury, it is conceded by the learned counsel for the appellant, were correct, but it is claimed that, by a subsequent portion of the charge made at the instance of the defendant’s counsel, a different rule was laid down misleading to the jury, and for which a new trial should be granted. The defendant’s counsel asked the court to charge as follows: “I also ask the court to charge that after the dissolution, which took place in December, 1881, the defendant, John, could not bind the partner by promise or part payment of the debt, and that the dissolution was a revocation of his agency or power to bind her by any promise he might make, or any payment.” The judge so charged, to which the plaintiff’s counsel properly excepted. This portion of the charge is hardly reconcilable with the true rule laid down in the charge in chief, and if this was the whole of the case it would be difficult for us to say that it did not prejudice the plaintiff, even though the true rule had previously been stated. Later on, however, the plaintiff’s counsel asked the court to charge as follows: “ I ask the court to charge that in the making of these payments by John Vanderwerf there was no new contract made, but it was a continuing of the old contract and payments upon it.

By the court. — I decline to charge on that subject any further than I have; I think the matter is clearly before the jury now. There is no question of a new contract in the case; the question is merely whether Chace had notice within the rules I have laid down here.”

It appears, therefore, that the inadvertent acquiescence to the proposition made by the learned counsel for the defendant in his request to charge was fully cured by the judge’s final statement to the jury made in response to the plaintiff’s request, and by which he, substantially reinstated the case as he had originally placed it before the jury.

Under these circumstances we think that there was no error in that portion of the charge made at the request of the defendant’s counsel which prejudiced the plaintiff.

The judgment and order, therefore, should be affirmed.

Barker, P. J., and Dwight, J., concur.  