
    [Philadelphia
    March 27, 1829.]
    CALDWELL, Administrator of CALDWELL, surviving Partner of HOLMES, against STILEMAN.
    IN ERROR.
    , Though,-in an.action .against the representatives of a deceased partner, the'*' . evidence of the insolvency of the surviving partner, be not satisfactorily proved, yet if it be sworn to, and the defendant demur to the evidence, it must be taken as proved. -
    If a contract.be made with a firm", to- do a certain piece of work, which is not finished until after the death of one of the partners, the estate of that partner is liable, provided the suryiving partner be insolvent.
    Though on a demurrer to evidence, judgment will not be given if the declaration set forth-an illegal'cause of action, or no cause'of action, yet it waives all objections merely formal; and what would be cured by a verdict, is cured by a demurrer to evidence. ■
    Writ of error to the District Court for the city and county of Philadelphia. '
    
      Richard Stileman,
    
    the defendant in error and plaintiff below, brought this action against John Caldwell, administrator of Alexander Caldwell, deceased, who in his lifetime, traded in partnership with John Holmes, under the firm of Holmes and Caldwell.
    
    The suit, was brought to March Térra, 1825, and the declaration, which contained an averment of the insolvency of John Holmes, was for work and labour done, and performed for the firm of Holmes and Caldwell, in the lifetime of the said Alexander Caldwell. The plaintiff claimed, the sum of. one hundred and seventy dollars and thirteen cents, which included work done and delivered before the death of Alexander Caldwell, as well as work done and delivered to John Holmes, after the death of Caldtoell.
    
    The case, as disclosed by the evidence given at the trial, was briefly as follows:—
    In the autumn of the year 1824, Holmes and Caldwell entered into partnership in the business of making machinery for manufactories of eotton and wool. They made an agreement with Richard Stileman, the plaintiff below, who was a blacksmith, to make all the iron work for their machinery, for twelve and a half cents per pound. About the 14th of September, 1824, Holmes and Caldwell, entered into a contract with Bernard MlCredy, to make for him a stretchex-, which was to be finished in six weeks or two months, and in case of delay in delivering the work, a penalty was imposed by the agreement. Stileman was employed to do the iron work for the stretcher. It was proved by one witness, that Caldwell went to Stileman, and urged that the sliafts, &e., of a horse mill should go on as quickly as possible, as he wanted him to go to work at the stretcher; and M‘Credy testified that Caldtoell told him he had employed Stileman to do the iron work for the stretcher. Part of the work for the horse mill was sent to Holmes and Caldwell's manufactory in the lifetime of Caldtoell. None of the woi’k for the stretcher was sent there until after his death, nor was there any pi'oof that Stileman bad begun to work at it when Caldwell died. Fx'om his own books it seemed that he had not.
    
      Caldtoell died on the 6th of October, 1824, and Stileman knew of his death.
    
      Holmes carried on the business for sometime after the decease of' Caldwell, and gave Stileman an order on Mi Credy, dated the 17th November, 1826, to pay him. for the iron work of the stretcher, made by Holmes and Caldwell. This order M‘Credy refused to accept, because it was not signed by Holmes, as surviving partnei'. He offered to accept it if this were done, but it was not done. It was sworn by one witness that Holmes became insolvent soon after Caldwell's death; and by another, (M‘Credy,) that he made an assignment, but at what time, was not stated. MlCredy paid the assignees for the stretcher.
    It appeared from the record, that on the 15th of February, 1825, Holmes gave bond to appear at the next eourt, &c., to take the benefit of the insolvent laws.
    From Stileman's books, which were given in evidence, it appeared that the work for the horse mill was begun on the 13th of September, 1824, and finished on the 20th of November, 1824. It amounted, in the whole, to eighty dollars and thirty-seven and a half cents. On a different page was an entry of iron work for 3i‘Credtf, to the amount of ninety-four dollax’s and eight cents, beginning on the 13th of October, and ending on the 13th of Fecem
      
      her, 1824. In another page,what was called the “ Jobbing Account,” beginning on the 17th of September, and ending on the 20th of October, 1824, amounting to thirty dollars and ninety-three cents, was charged to John Holmes. In another page, another account to the amount of five dollars and thirty-six cents, beginning on the 21st of December, 1824, and ending on the 10th of January, 1825, was also charged to him. Credits were entered on the 5th of November, 1824, and at sundry times afterwards, to the amount of forty dollars and sixty-three and a half cents.
    When the plaintiff had closed his case, the defendant demurred to the evidence. The plaintiff joined in the demurrer; and the jury assessed damages, conditionally, for the whole of the plaintiff’s demand. The court below gave judgment for the plaintiff.
    In this court, the following specifications of error were filed:
    
    
      First, Because there is not in the evidence deinurred to, such proof of the insolvency of John Holmes, the surviving partner, as to entitle the plaintiff to maintain his suit against the administrator of the deceased partner, at the time and in the manner the suit is brought.
    
      Second, Because the dealings of the plaintiff with John Holmes, the surviving partner, after the . death of Alexander Caldwell, in doing new work and delivering to him work contracted to be done before the death of Alexander Caldwell, form a bar to the present suit. •
    
      Third. Because, under the declaration filed and issue joined, the plaintiff cannot recover for any work done and performed after the death of Alexander Caldwell.
    
    
      , Bradford, for the plaintiff in error.
    1. The evidence of the insolvency of the surviving partner was not sufficient. He had made a general assignment and given bond for the purpose of taking the benefit of the insolvent laws, but he does not appear ever to have carried that purpose into execution. This is not sufficient evidence of insolvency to maintain an action against the surviving partner. It is settled in Pennsylvania and in England, that where the surviving partner is insolvent, the creditor has a remedy against the representatives of the deceased partner; but the insolvency required must be actual, positive, and legal. It must be averred and proved, that he has been discharged by an insolvent or bankrupt law. The creditor has no equitable remedy against the representatives of the deceased partner, until he has exhausted all legal remedies against the survivor. Lessee of Ross v. Eason, 4 Yeates, 54. Duerhagen v. The United States Ins. Co., 2 Serg. & Rawle, 185. Lessee of Maus v. Montgomery, 11 Serg. & Rawle, 329. Bank of the United States v. Smith, 11 Wheat. 171. 15 Johns. 57. Heath v. Percival, 1 P. Wms. 682. Storer v. Herncliff, Conn. Rep. 147. Daniel v. Cross, 3 Ves. jr. 277. Gray v. Chiswell, 9 Ves. jr. 125. Van Reimsdyke v. Kane, 1 
      Gall. 385. Lang v. Keppele, 1 Binn. 123. Marshall v. De Groot, 1 Caines’ Ca. in Er. 122. Lewis v. Culbertson, 11 Serg. & Rawle, 48.
    2. The dealing between the plaintiff and Holmes after the death of Caldwell formed a separate contract, under which the representatives of the deceased partner could not be charged. The general agreement to work at a given rate, was rescinded by the dissolution of the partnership, which was the consequence of the death of one of the partners, except as to work actually begun under that contract.
    3. The declaration being only for work done before the decease of Caldwell, no judgment could properly be given for what was performed after that event.
    
      Dallas, for the defendant in error,
    (who, on the first point, was stopped by the court,) answered, that the contract with the plaintiff was entire, and could not be divided. It related to the iron work of all jobs that were to be finished by the firm after the death of one of the partners. He was to be the smith of the firm, so long as it, had such work to do. The work was in progress, and part of it executed before the death of the deceased partner. He cited 2 Powell on Cont. 56. Gow on Part. 437, 440, 460. Hammersly v. Lambert, 2 Johns. Ch. Rep. 508. Daniel v. Cross, 3 Ves. jr. 219.
   Huston, J.,

(after stating the facts,) delivered the opinion of the court, as follows:—

1. As to the insolvency of Holmes, the proof is not verysatisfactory. But one witness says, he became insolvent; another, that he assigned, and the record showed that he' had applied for the benefit of the insolvent acts. This suit was instituted by-writ returnable to the term at which he was to be heard as an insolvent. The narr states, that he had become insolvent, and was. totally unable to pay, &c.—issue might have been taken on this. '

The evidence, as offered, might some of. it, have been objected to, but was not. Instead of parol evidence that he assigned, the assignment must have been produced. % A bill of exceptions to evidence offered, brings up the question of the legality and competency of the evidence. If the evidence is admitted without objection, and there is a demurrer to it, this admits that the evidence was legal, competent, and true, and brings up only the effect of it on the right: every fact sworn to, or shown by written documents, is admitted to be true; and every fair inference from what is given in evidence^ is to be taken as proved. Now, it was expressly sworn that he was insolvent. It was truly said by the láte Chief Justice, that he who demurs to evidence, has an up-hill business of it. . -

I admit fully, that before the estate of a deceased partner can be made liable, it ought to appear that the surviving partner was unable to pay, and I would not advise a verdict for the plaintiff, until he had given pretty full evidence of it. I think a jury ought to presume against inconclusive and defective proof, if fuller and more satisfactory evidence was possible. The representatives of a deceased partner cannot meddle with partnership property, or collect the credits, until the debts are paid. The fund is by law appropriated to creditors of the firm, and they ought to show that it is exhausted . before they resort to the individual estate of a deceased partner.

But in this case we must take it to have been proved.

2. A partnership may be dissolved by the parties themselves, or in some cases by one of them—by the bankruptcy of one, or by the death of one. There is, in some respects, a difference as to the effect of a dissolution in the different ways. We have here to consider only of one, a dissolution by the death of a partner; and this of itself works a dissolution, and so entirely, that want of notice of it does not have the effect of making the estate liable to debts contracted by surviving partners, or for their misconduct. This has been complained of, reconsidered, and I consider it settled, and rightly settled; but, from the nature of the transactions of men, and from the uncertainty of the time when one may die, (or the partnership be dissolved in some other way) contracts may be made, and engagements entered into, which are not complied with at the dissolution; and, for the purpose of making good these engagements, the partnership must have a legal continuance, though determined as between themselves, for every other purpose. Under what-particular circumstances and by what particular engagements it will be so continued, and to what effect, even after the death of one partner, is not easy to define. The wisest judges have not been able to establish any universal rule; and the more there is known of the business of this life and the diversity of engagements, so much more strongly will the difficulty of any general rule without exception, strike the mind.

As to a specific contract to do a particular thing, there is no difficulty. I incline to think that generally, a continuing agreement, to do all work of a certain description, to deliver all flour, or whiskey, or cotton, or tobacco, ,&c. &c., is not within the rule, for if it were, the survivors could continue the partnership as long as they could get the old hands to work, or old customers to continue dealing; in such cases all work done on orders not given in the lifetime of the deceased—all articles delivered after his death must generally be considered as chargeable to the survivors only. The interest of the deceased is fixed by the state of affairs at his death, or at most, when contracts, at his death, are completed. An agreement to do a particular job, may bind the estate of the deceased, not an agreement to do all work, all jobs, at the same rate. This would keep the estate of the deceased liable for years. If it cannot be held liable for years, we can fix no time except death, and engage-merits then specific. In this case the evidence is, that Caldwell, in his lifetime intimated to Stileman, he was to do this work: at another time he urged him to expedite the work of the horse mill, that he might begin this; and he told M‘Credy, Stileman was to do it. There was no error in including this in the verdict. The horse mill was clearly begun in Caldwell’s lifetime: as to the job work, this is before us uncertain. The extract from the books is so short, we do not see it as fully as the court and jury who had the books—it is all charged to J. Holmes. We have no evidence that any of it was ever chargeable to the firm, or is now chargeable on defendant; but the credits would seem to be all entered to this account, and exceed the debits. There is then, no injury to the plaintiff in error by taking in this.

3. The third objection remains to be considered. It is true that on this declaration the plaintiff could not have given evidence of work done after Caldwell’s death, but it was permitted to be given without objection. It was then contended that in no event was Caldloell’s estate liable for this: it was found that for work contracted for in his lifetime, his estate is liable, and then exception is taken that the allegata and probata do not agree. It is too late., I do' not say that on a demurrer to evidence we will so far disregard the pleadings as to give judgment when the narr states no cause of action, or an illegal cause. But, I do say, and all the eases warrant me in saying, that it waives all objections merely formal, and what would be cured by a verdict is waived by a demurrer to evidence. What is contended-for here would make it a demurrer to the narr, a bill of exceptions to testimony, a motion for a new trial, and a motion in arrest of judgment. Now, it is neither of the three first, and after a decision of court on the law, as arising on the facts, it can never be the last, except as I said, in case of a total and radical defect.

Judgment affirmed.  