
    Thomas Lee and Harold Bacchus, trading as Lee & Bacchus, v. William Burnley, John E. Burnley and John S. Butterworth, Appellants.
    
      Partnership—TAmited partnership association—Defective certificate.
    
    Where a limited partnership association expires by its own limitation, owing a large sum of money, for the payment of which no provision is made at the time, and three weeks thereafter another limited partnership association is organized by the identical persons who were members of the old one, and in their certificate these persons enumerate the property of the old association and state that it is their own, and that they contribute it as capital, and subsequently the new association pays some of the debts of the old association, and then becomes insolvent, the members of the new association are liable as general partners for the debts contracted by the association.
    Each partner of a limited partnership association is liable unless saved by statute. If the partners have not complied with the statutory requisites, a limited partnership has not been formed.
    Argued Feb. 5,1900.
    Appeal, No. 148, Jan. T., 1899, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1897, No. 469, on verdict for plaintiffs.
    Before Gkeen, C. J., Mc-Collum, Mitchell, Dean and Fell, JJ.
    Affirmed.
    Assumpsit for debts contracted by a limited partnership association. Before Clayton, P. J.
    From the record it appeared that plaintiffs alleged that defendants were liable as general partners for the debts which had been contracted by the Parkmount Mills Company, Limited. The claim was based on an alleged defective certificate filed on July 22, 1897. The schedule annexed to the certificate was as follows:
    “ Schedule of the property contributed by the partners to the Parkmount Mills Company, Limited, in accordance with the foregoing certificate, at valuations approved by all the members thereof:
    2 Horizontal boilers (60 horse power each) $1,650 00
    1 Upright boiler 800 00
    1 Corliss Engine (100 horse power) 8,000 00
    6 sets 60,/ carding machines 10,000 00
    Amount carried forward $15,450 00
    
      Amount brought forward $15,450 00
    4 self operating mules 612 spindles each 5,000 00
    100 witch looms Woods make $95, each 9,500 00
    3 warping mills 300 00
    3 bobbin winders 350 00
    6 spooling frames 450 00
    5 twisting machines at $575 2,875 00
    2 shearing machines 750 00
    1 cloth dyer 1,000 00
    2 fulling mills at $125 each 250 00
    2 cloth washers at $125 250 00
    1 Gessner steam press 1,000 00
    1 wool picker 90 00
    1 willow 70 00
    Shafting, pulleys and hangers, 2,000 00
    4 dye kettles at $40 each 160 00
    Fire apparatus, viz: Worthington pump and
    automatic sprinklers 1,500 00
    Steam heating apparatus 500 00
    Manufactured goods at mill:
    247 pieces worsted at $20 4,940 00
    153 pieces woolens at $9 1,377 00
    Raw stock and yams:
    10,327 lbs. dyed wool worth .32 per lb.
    10,628 lbs. cotton worth .08 per lb.
    15,241 lbs. worsted yarn worth .60 per lb.
    Said ray stock and yarns being estimated
    for the purpose of this valuation at 12,188 00
    
      WWoo
    
    “James M allison. John S. Butter worth.
    “ William Burnley. Francis J. Butterworth.
    “John E. Burnley. Mary B. Walker.
    “ Recorded in the office for recording of deeds in and for Delaware county, Pennsylvania, in Limited Partner Book No. page 336, etc.
    “Thos. D. Young,
    [Seal] “ Recorder of Deeds.”
    There was nothing in the certificate or schedule which showed that the property contributed was liable for the debts of a prior limited partnership association which had expired by limitation.
    Other facts appear by the opinion of the Supreme Court.
    The court charged in part as follows :
    [Now, let me repeat to you, the 'members of the firm, the members of the firm that immediately preceded the present partnership, had no individual property in the assets of that firm until its debts were paid or amply secured. When the debts are all paid what is left they may divide among themselves, and then, and not until then, does it become their property; until, therefore, there was a settlement of the affairs of the firm that immediately preceded the present association, there was no individual property in these gentlemen unless the affairs of that firm were settled.] [15]
    [I say to you, gentlemen, as a matter of law, if you find that these gentlemen (the defendants) instead of having the affairs of the old firm settled and its debts ascertained or paid or secured, if instead of doing that you find they simply put the ass'ets of the old firm into the new one unsettled, with its debts unpaid, your verdict should be for the plaintiff. The law will not recognize it. Why? Because the property is subject to the debts of the firm. ■ It is not such property as the law recognizes can be put into a special partnership and set apart for special security for the debts of the new firm.] [16]
    Verdict and judgment for plaintiff for $1;052.71. Defendants appealed.
    
      Errors assigned among others were (15, 16) above instructions, quoting them.
    
      O. B. Dickinson, with him Edward A. Price, for appellants.—■
    Partnership creditors have no lien upon its property, but the same is in the full dominion and at the disposal of the firm, and they may segregate the property, pass it over to an individual partner or to a new firm whose property it then becomes. The creditors of the old partnership must work out their equities through the members of the old firm. If they are injured they have their proper remedy, but they have no lien and cannot follow specific property of the old firm to its new ownership: Coover’s App., 29 Pa. 14; York County Bank’s App., 32 Pa. 446 ; Cope’s App., 39 Pa. 284; Backus & Co. v. Murphy, 39 Pa. 401; Vandike’s App., 57 Pa. 9; Baker’s App., 21 Pa. 76; Cock v. Bailey, 146 Pa. 328; Electric Co. v. Weber, 172 Pa. 635 ; Lafiin v. Steytler, 146 Pa. 434.
    The agreement of the new association to take the remaining assets of the old partnership at a price equal to the amount of its debts, was lawful: Seigel v. Chidsey, 28 Pa. 279; Walker v. Bank, 98 Pa. 574; James v. Vanzandt, 163 Pa. 171.
    
      V. Gilpin Robinson, for appellees.
    Where property has not been contributed, scheduled and valued as the act of 1876 directs, there is no payment of the capital: Eliot v. Himrod, 108 Pa. 569; Vanhorn v. Corcoran, 127 Pa. 255; Gearing v. Carroll, 151 Pa. 79; Haslet v. Kent, 160 Pa. 85; Coover’s App., 29 Pa. 9.
    The law seems to be well settled that a general partnership having unpaid debts, cannot turn its assets into a limited partnership association subject to the payment of those debts, because the capital subscribed must be in cash or its'equivalent: Haslet v. Kent, 160 Pa. 85; Eliot v. Himrod, 108 Pa. 569; Bank v. Creveling, Miles & Co., 177 Pa. 270.
    March 5, 1900:
   Opinion by

Mk. Justice Dean,

The plaintiff’s brought assumpsit against William Burnley, John E. Burnley, James Mallison, John S. Butterworth, Francis J. Butterworth and Mary B. Walker, as general partners trading as “ The Parkmount Mills Company, Limited.” Francis J. Butterworth and Mary B. Walker not having been served, the jury was not sworn as to them. The plaintiffs dealt in wool; defendants carried on, professedly, a limited partnership in the manufacture of woolen goods. There was no dispute as to the amount of plaintiff’s’ claim, as evidenced by two notes of the partnership. The defense was that they were not general partners and that the limited partnership was alone liable, and as a consequence, only the partnership assets were subject to seizure or appropriation in payment of plaintiffs’ debt. The reply was that in the formation of the limited partnership, the members had not conformed to and had violated the law authorizing and regulating such partnerships and that, therefore, they were answerable to creditors as general partners. The court below submitted to the jury some disputed questions of fact; the verdict was for plaintiffs, and we now have this appeal by only two of defendants. Twenty-six errors are assigned; thirteen to rulings on offers of evidence, and a like number to the charge of the court. If there had been, properly, questions of disputed fact, the answering of which determined defendants’' liability, we think, some, at least, of these assignments would have merit; but, in our opinion, there was nothing for the consideration of the jury because, in law, on certain undisputed facts, defendants were answerable as general partners.

Take these facts as shown in great part by the record evidence: The articles of association filed of record are dated July 22, 1897; the subscribers are those here sued; the capital stock is set forth as $60,000, all paid in as follows: The machinery, fixtures and stock valued at said sum, now in Parkmount mills, near Lenni, in the township of Middletown, Delaware county, contributed by the partners in proportion to the amounts subscribed by each; the term of the partnership was one year; then follow the usual stipulations for the government of the partnership, and then comes a schedule of the machinery, fixtures and stock of- the Parkmount Mills Company contributed as capital stock, with an itemized valuation aggregating the exact amount of the capital. The partnership was composed of exactly the same persons as were members of a former limited partnership, under the same name and same act of assembly, that of 1874, which had been organized June 80, 1896, to continue for one year, and whose term had expired June 30, 1897; not until July 22 following was this partnership formed; it was not a continuation of or extension of the term of the old one, but was a new organization. The financial condition of the old association, when its life ended by the express stipulations of its articles, was as follows:

Total assets, $102,896.70
Total liabilities, 63,073.99
Leaving net assets, $39,822.71

Now, the members of the new partnership, who are the identical members of the old one, took their entire capital, $60,000, from the gross assets of the old one, leaving but $42,896.70 of old assets wherewith to pay $63,073.99 of old debts. Yet these $60,000 of assets did not, under the law of their organization belong to the members of the new partnership to be used as capital in that organization. The old partnership expired by the ending of its term; its assets then became immediately subject to the just claims of its creditors; until the $63,073.99 of its debts were paid, or arrangements satisfactory to all the creditors were made for the disposition of them, it was, at least constructively, under the act, a fraud upon them to remove and divide among the partners $60,000 of the assets. And it is so held in Haslet v. Kent, 160 Pa. 85. This property thus taken, was still equitably subject to the claims of the old creditors; whether they had a remedy by which such claims could be enforced as against creditors of the new partnership, we need not inquire; one thing is clear, they had a remedy against the partners individually, for these partners disposed of to another concern, the very property which by the old certificate belonged to the old partnership creditors. These defendants contributed it as the capital of a new organization, without a word in the certificate to disclose its history, or the doubtful nature of their right to thus contribute it. Conscious of their moral obligation, if not a legal one, to the creditors of the old partnership, they undertook to discharge the old partnership liabilities out of the current income of the new one, and actually did pay $28,485.06, besides confessed judgments to old partnership creditors for about $17,000 more. As a consequence, after an existence of about eight months, the new partnership was insolvent. Hid the new certificate set forth the fact as required by the act ? It, in effect, avers that the machinery, stock and fixtures was their property absolutely, and that they turned it in as capital; but their title was not absolute, unless the property was surplus after payment of debts of the old partnership, or unless the old partnership creditors consented to the transfer; they took not a single step towards adjusting and closing up the business of the old partnership as the law points out; they simply divided the assets among themselves; and each appropriated to himself a large amount of what is set forth in the old certificate as capital of the old partnership; the new partnership undertook to make the creditors of the old one whole by paying its debts. In reality, the entire capital of the new partnership consisted of the debts of the old one, of which not even a hint is given in the certificate for information of the new creditors. All our authorities have held the members of a limited partnership to a strict compliance with the letter and spirit of the act. In Haslet v. Kent, supra, in the certificate, the property was described as having been purchased by the partners from another company, subject to the payment of that company’s debts. It was held that this was not a contribution of a property within the meaning of the act; we said, speaking by the late Sierbett, C. J.: “ Unless we are willing to let the act of 1876 become a cover for fraud, and a snare for the unwary, we should adhere emphatically to what we have heretofore said, as to the scope and meaning of the act. As was said in Maloney v. Bruce, 94 Pa. 249, the property contributed was the equivalent of cash, and the plain object of the provision, requiring a schedule, was to enable creditors to ascertain precisely of what the property consisted and to judge of its value.” In the case before us, creditors had not, as in the case cited, even information, that the entire assets of the new partnership started with a debt equal to their value: Eliot v. Himrod, 108 Pa. 569; Hill v. Stetler, 127 Pa. 145.

The able argument of the learned counsel for appellant proceeds upon a mistaken premise. He assumes, for the purpose of his argument, that the arrangement for paying the debts of the old firm might support a claim against the new one, but could not make the members of the new one liable as general partners, if they acted in good faith, and in the exercise of an honest business judgment as to what was best for the interests of all concerned. His conclusion correctly follows from his assumption. But the case does not turn on good faith or honest business judgment; we cannot read into the act any such liberal features. As is said in Eliot v. Himrod, supra, “ Each partner is liable unless saved by statute. If the partners have not complied with the statutory requisites, a limited partnership has not been formed.” Nothing is said in the statute about compliance in good faith or in good business judgment, but it is distinctly enjoined that the property shall be contributed according to its value. This was 'not done here, and therefore the judgment is affirmed.  