
    
      Farmers Bank of Va. v. Kent, Paine & Kent.
    April Term, 1861,
    Richmond.
    Partnership—Agency—Case at Bar.—K., K. & A. were a firm doing a wholesale business as merchants in Richmond, and in 1846 they employed P. to carry on a retail business in Lynchburg, under the style of P. agent for J. S. K., the name of one of the partners. The publication was made and the sign put up in the above name as prescribed by the statute. In 1850, some of the partners retired, but th e firm in Richmond was continued, new partners being admitted under the name of K., P. & K.; J. S. K. continuing to be a partner of the firm; but neither then nor at any time after the Code of 1849 went into effect, was there any new publication as to the agency in Lynchburg. In 1853 the goods of K., P. & K. in the storehouse of P.-in Lynchburg were taken under execution by his creditors. Held: The law having been complied with in 1846, and the present firm in Richmond being a continuation of the former, the goods are not liable to the creditors of P.
    In February 1853, the Farmers Bank of Virginia sued out of the clerk’s office of the Circuit court of the city of Bynchburg, two executions against the goods and chattels of John J. Purvis and others; and upon these executions the sergeant of the city returned that they had been levied upon a lot of dr3’- goods, the property of J. J. Purvis, found in his storehouse on Main street in the city of Bynchburg. And that the property levied on was claimed by the firm of Kent, Paine & Kent, who had executed a suspension bond;' which was returned therewith.
    At the June term of the court for 1853, on the motion of the plaintiffs, Kent, Paine & Kent were summoned to appear at the next term of the court to make themselves parties to the proceeding,- in order that their claim to the property levied on might be determined accord-
    ing to law. And at the November term of the court they having appeared, the court made an order that a jury be empanelled at the bar of the court to try the issue—whether at the time of the levy of the said executions on the property claimed by Kent, Paine & Kent, and mentioned in the return of the sergeant, the said property levied on as the property of J. J. Purvis and as liable for the said debts mentioned in said process, was the property of Kent, Paine & Kent, and not liable to be levied on for said debts. And on the trial of this issue Kent, Paine & Kent were to be considered the plaintiffs, and the said plaintiffs be considered as the defendants.
    At the June term 1856 the cause came on for trial; when the jury found a special verdict; the material facts of which are stated in the opinion of Judge Bee. And upon this verdict the Circuit court rendered a judgment in favor of Kent, Paine & Kent; and thereupon the Farmers Bank applied to this court, for a supersedeas, which was awarded.
    Mosby, for the appellants.
    J. O. B. Goggin and Kirkpatrick, for the appellees.
    
      
      In Nat. Bank v. Cringan, 91 Va. 361, 21 S. E. Rep. 820, the court said: “The only cases in which the statute (Acts 1839, ch. 72, p. 45: V. C. 1849, ch. 146, § 13, p. 586; V. C. 1887, § 2877) has come under review in our supreme court of appeals ’were cases of agency. See Farmers’ Bank v. Kent, etc., 16 Gratt. 257; Penn v. Whitehead, 17 Gratt. 508, 524.”
    
   BEE, J.

Waiving the question whether Purvis was a trader within the meaning of the thirteenth section of chapter 145 of the Code of Virginia, and conceding for the purpose of this case, that he was such a trader, the important enquiry occurs whether previous to the levy of the execution upon the goods claimed by the defendants Kent, Paine & Kent, the provisions of the section above referred to had been so complied with as to protect the property against the claims of the creditors of Purvis.

The firm of which that of Kent, Paine & Kent was the continuation, consisted of six persons, Horace B. Kent, George F. Kendall, George M. Atwater, James S. Kent, William G. Paine and John Enders, (the last named being a dormant partner), and they carried on their business under the partnership name of Kent, Kendall and Atwater. Whilst thus engaged in business, this firm on the 1st of September, 1846, employed Purvis as their agent to conduct a general dry goods business in Lynchburg, at a stated compensation, and for convenience, the business was to be conducted for them by him as the agent of James S. Kent, one of the partners. A written- instrument evidencing the agreement was accordingly signed by Kent, Kendall & Atwater and Purvis, and on the 7th of December, 1848, was acknowledged by Purvis and spread of record in the hustings court of Lynchburg. Immediately after it was made, a sign -was placed over the door of the storehouse with “J. J. Purvis, agent for J. S. Kent” inscribed upon it, and an advertisement was inserted in a newspaper printed in Lynchburg in the name of J. S. Kent announcing that he had appointed J. J. Purvis his agent for the purpose of conducting a general dry goods business in Lynchburg; and the same was continued for six weeks from the 1st of October, 1846. The agreement appears to contemplate the continuance of the agency for three years only, but after the expiration of that time the business was continued in the same way by the consent of the parties until the change in the old firm and the formation of the new under the partnership name of Kent, Paine & Kent, in February 1850, and by like consent was continued in the same way until the levy of the plaintiffs’ execution was made. James S. Kent was a partner in both firms and his name was adopted by the last named firm for the purposes of the Lynchburg agency just as it had been by the former firm. Indeed the firm of Kent, Paine & Kent was but a continuation with a change of partners, of the old firm of Kent, Kendall & Atwater, and *the Lynchburg agency was continued without change in any respect except that James S. Kent represented the partners composing the new firm instead of those of the old.

The fair construction of the acts of those parties is that those constituting the' firm of Kent, Kendall & Atwater doing a wholesale dry goods business in Richmond, desiring to conduct a retail business in Lynchburg, adopted the name of one of the partners James S. Kent, as the partnership name for the Lynchburg concern, and in that name established the agency of Purvis, and put up the sign and published the advertisement for the purpose of disclosing the name of a principal liable for the payment of the debts that might be incurred, as required by the act of 1839; that after the three years contemplated by the written agreement, they continued by consent to carry on the business in the same way, and after the change in the firm and the formation of the new firm of Kent, Paine & Kent, James S. Kent being a partner of this firm, the business was continued in the same name; and after the new Code took effect, as the provisions of the thirteenth section of chapter 145 had been complied with when the agency was first established, they did not deem it necessary to renew what had been then done.

Now no one can doubt that parties carrying on business in a particular partnership name in one place may do business in other places in a different partnership name. They may have as many different partnership names as they have places of business. The parties doing business under the name of Kent, Kendall & Atwater in Richmond might well carry on business elsewhere under a different partnership name, and they might adopt the name of one of the partners as the partnership name for the Lynch-burg concern. For where partners agree that their business shall be done in the name of one person, ^whether himself interested in the partnership or not, that is the partnership name and the partners are bound by it. Collyer on Part. $ 215, nn.

And as those parties might carry on the business in the name of James S. Kent, I can see no reason why they might not establish an agency of which that firm should be the principal, nor why the act of assembly should not be deemed sufficiently complied with if the sign and advertisement were in that name as the principal. It certainly could not be required that the individual names of all the partners should be stated. This would involve very great incovenience in many cases without any real benefit to any one. Partnerships sometimes consist of a great number of partners, to name all of whom might be very difficult and inconvenient if not impossible ; and in the cases in which there might be dormant partners, no such agency could be established. Nor can any useful purpose be accomplished, because if the name of the firm be given as that of the principal in the agency, all the partners ostensible or dormant are just as much liable and to the same extent as if their names had been particularly specified.

But whilst the counsel for the plaintiff does not seriously controvert this proposition, he yet urgently insists that the proper firm name was not given, that it should have been Kent, Kendall & Atwater, instead of James S. Kent. The error of this consists, I think, in the failure to distinguish between the two concerns at Richmond and Lynchburg. They were in legal contemplation, separate and distinct. The one was a wholesale and credit business, the other a retail business for cash; they were conducted at different places; the one by the principals in person under the name of Kent, Kendall & Atwater, afterwards Kent, Paine & Kent, and the other in the name of J. J. Purvis agent for James S. Kent; separate books were kept and a weekly account of daily sales ^rendered by the latter concern to the former. Being different concerns, it was therefore proper that the agency should be conducted in the name assumed for the firm at Lynch-burg, and the sign and advertisement in that were a sufficient compliance with the requirement of the law.

That after the change in the old firm and the formation of the new firm of Kent, Paine & Kent, or after the new Code took effect, there was no new sign or advertisement, will not defeat the right of the defendants to have their property protected against the creditors of Purvis. The new firm was, as is found by the jury, but a continuation of the old firm, and the business at Lynchburg was continued in the same name and manner as during the old firm. The partnership name James S. Kent represented the new firm just as it had the old firm, and any new sign or advertisement would have been the same as those which had been put up and published before the act took effect. As long as the sign remained over the door and the advertisement in the paper was unexplained or not countermanded, James S. Kent remained the partnership name of the firm for which Purvis did business as agent. James S. Kent was the ostensible principal of that agency, and the other partners of the Richmond house stood in the same relation to the Lynchburg concern as William G. Paine and John Lnders did to the concern of Kent, Kendall & Atwater, and Robert G. Payne to the concern of Kent, Paine & Kent. If Purvis was a bona fide agent and James S. Kent a bona fide principal, the terms of the statute were satisfied. So far as the requirements go, it was wholly immaterial whether James S. Kent was sole principal or whether he had partners trading with him under his name and who would be equally responsible for the debts of the concern.

Upon the fair construction, of the statute in question, *1 think what was done was sufficient to protect the goods levied on (which the jury have found expressly were the property of Kent, Paine & Kent) from the claims of the creditors of Purvis, and that the Circuit court did not err in so deciding: I am of opinion therefore

that the judgment should be affirmed.

The other judges concurred in the opinion of Lee, J.

Judgment affirmed.  