
    John J. Serviss, App’lt and Resp’t, v. Lucy McDonnell, Resp’t and App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    1. Partnership—Incoming partner—Liability op.
    - An incoming partner is not as of course liable for the debts o„ the firm, whether he succeeds an outgoing partner or whether upon the death of one partner he joins with the other in carrying on the business of the firm by virtue of a new partnership. He may become liab.e by agreement to the extent therein agreed.
    2. Same—Agreement between partners—Who can sue por breach of.
    An undertaking on the part of an incoming partner alone or in connection with others, that the new firm will pay the debts of the old firm can be enforced only by the old firm, and the creditors cannot sue for the breach of it
    3 Same—When creditor op old firm can sue on.
    Where the creditor of the old firm has had no communication with the incoming partner, nor accepted him as his debtor, and has made no change of credit nor done any analogous act, he cannot maintain an action on such agreement. One who is not a party to a contract cannot. sue in respect to a breach of duty arising out of the contract.
    4. Practice—Question considebed on appeal.
    An exception not taken in the court below cannot be available in the court of appeals on appeal.
    Appeal from a judgment of the supreme court, general term, third department, modifying a judgment entered upon the verdict of a jury directed in favor of plaintiff.
    N. C. Moak, for app’lt, resp’t; N. P. Hinman, for resp’t, app’lt.
    
      
       Affirming 36 Hun, 646, mem.
      
    
   Danforth, J.

The plaintiff was the owner of the notes, each made by McDonnell, Perry KHne and Thomas Harvey, who thereby jointly and severally promised to pay to his order,in one case $500, and in the other $2,000, in one year from April 1, 1873, with interest. The makers constituted the firm of McDonnell, KHne & Co., and the notes were given in consideration of money loaned to them in that capacity. One of the makers, John McDonnell, died, and the complaint aHeges that thereafter and in February, 1873, Lucy McDonnell, Perry KHne and Thomas Harvey formed a new firm under the same name of McDonnell, KHne & Co., and in consideration of a transfer to them of the business and property of the old firm, agreed to pay into said firm and for the purpose of carrying on said business, certain large sums of money and to assume and pay all the obHgations, debts and liabiHties of said former firm of McDonnell, KHne & Co., amongwhich debts, liabiHties and obHgations were the two promissory notes above referred to; that no part of either of said promissory notes has been paid, except that the interest has been paid to April 1, 1881, and for the principal sum, with interest, the plaintiff asked judgment against Lucy McDonnell and Thomas Harvey.

The action was commenced February 7, 1884, and the defendant Lucy McDonneH alone answered, in substance denying aU the material allegations of the complaint and setting up that the alleged cause of action did not accrue within six years. Upon the trial at the circuit before a justice of the supreme court and a jury, the only proposition seriously litigated was the liability of Mrs. McDonneH, and to estabHsh that, parole evidence alone was given. Its force need not be considered, for at a subsequent stage of the trial she put in evidence written instruments which contain the agreement by which alone she can be bound, and the question upon the whole case was finaUy submitted to the trial judge as one of law. He not only denied the defendant’s motion for a non-suit, but also refused to rule when subsequently requested by her counsel, “ that the plaintiff was only entitled to recover as against her one-third of the amount due upon the notes, and upon the plaintiff’s applition directed a verdict in his favor upon the whole sum •claimed, and judgment was entered.

Upon the defendant’s appeal to the general term, that court modified the judgment by reducing it to one-third, and from the judgment so modified both parties appeal to this court, the plaintiff against the modification, and the defendant because it was not altogether set at naught.

The plaintiff’s appeal is so fully met by the reasoning of the learned judge at the general term, that little need be said. An incoming partner is not as of course liable for the debts of the firm, whether he succeeds an outgoing partner or whether upon the death of one partner he joins with the survivors in carrying on the business of the firm by virtue of a new partnership. He may became liable by agreement, but an undertaking on his part alone, or in connection with others, that the new firm will pay the debts ■of the old firm, can be enforced only by the old firm, and the creditors could not sue for the breach of it. _ The evidence which led the general term to modify the judgment was a written instrument, dated February 25, 1878, executed by Lucy McDonnell, her son, Willard McDonnell, Perry Kline and Thomas Harvey. By its terms these persons became partners under the name of McDonnell, Kline ■& Co., to continue the business theretofore conducted by the former firm of that name, for such time as they should agree, with a capital equal to the amount of the capital of the old firm, and it was declared that Mrs. McDonnell and Willard McDonnell, as parties of the first part thereto, were to pay one-third of the liabilities of the late firm of McDonnell, Kline & Co., and were jointly to receive one-third of the profits of said business, to pay one-third of the expenses of conducting it, and bear and pay one-third of all the losses which might happen, and furnish one-third of the capital.

The parties of the second and third parts were each to receive one-third of the profits, to furnish one-third of the capital, bear and pay one-third of all expense in conducting said business, and one-third of all losses which might happen or occur. The learned court held that the defendant’s liability must be measured by this agreement, and could not exceed one-third of the debts of the old firm. In this conclusion the learned judge was clearly right. The agreement contained the terms on which the defendant became a member of the firm and expressed the full extent of her obligation, whether it inured to the surviving members of the old firm or to its creditors. The plaintiff’s appeal must, therefore, in any view of the case, fail. If he could maintain an action at all, it could be only for the one-third

which came within the terms of the agreement. But the defendant also appeals. Her contention is that the plaintiff’s contract was with the members of the old firm; that there has been no change of credit, not even a communication with her, much less a promise on his part to accept her as his debtor.

Upon the record before us that contention is well founded, and the adjudged cases show that without some of these things being done, or some analogous act on the part of a creditor, he cannot maintain an action on such an agreement as that by which the defendant bound himself. Here it is apparent that the obligation of the defendant to her copartners is the only foundation for the plaintiff’s action, and there is no circumstance in the case to exempt him from the general rule of law, that one who is not a party to a contract cannot sue in respect to a breach of duty arising out of the contract. Moreover, our decision in Wheat v. Rice (97 N. Y., 296) is justly relied upon as controlling the disposition of this case. In /that the undertaking of the defendant was to “ assume and pay one-quarter of all the indebtedness ” of the firm name. In this the defendant jointly with her son, promised “to pay one-third of the liabilities of the late firm.” The cases cannot be distinguished, and the principle applied in that cited would seem to require the reversal of the judgment, if the defendant was in condition to avail herself of it. It is obvious, however, , from the record, that no such question was raised at the trial term, and so far as appears the point is taken for the first time in this court. This will not do. Had it been raised in season it might perhaps have been obv-iated. In such a case it is well settled that an exception not taken in the court below cannot be available on appeal. The defendant’s appeal must, therefore, also fail, and the judgment of the general term be affirmed.

All concur except Rapallo, J., absent.  