
    United Dressed Beef Company, Respondent, v. James Burrell, Appellant, and Thomas Burrell, Defendant, Copartners Doing Business under the Firm Name and Style of Burrell Brothers.
    Second Department,
    October 7, 1910.
    Partnership — evidence — proof of partnership — failure to show notice of dissolution.
    Where in an action against a partnership to recover for goods sold the plaintiff a proves that it sold goods to the firm for a period of fifteen years, during which time the defendants' conducted the business under a certain name, and that there has never been any-change in the firm sign, stationery, or in its bank account, there is a legal presumption that the copartnership still exists as to the plaintiff, although one of the defendants claims there had been a dissolution.
    Such dissolution with notice thereof to the plaintiff is not established by mere testimony that a year before the alleged dissolution one of the defendants stated to an agent of the plaintiff that he intended to give his interest to a clerk, but that his brother, the copartner, wished to acquire it.
    Appeal by the defendant, James Burrell, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 17th day of March, 1910, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 18th day of April, 1910, denying the said defendant’s motion for a new trial made upon the minuues.
    
      John C. Judge, for the appellant.
    
      Philip B. Adams, for the respondent.
   Woodward, J.:

The complaint alleges that the plaintiff isa domestic corporation, and, on information and belief, “that at all the times hereinafter mentioned, the defendants were and still are copartners doing business under the firm name and style of Burrell Brothers.” The complaint then sets out a cause of action for the purchase price of goods sold and delivered to said firm, and a second cause of action on a promissory note made and delivered by said firm. Thomas Burrell, one of the defendants, made default in answering, while James interposed an answer, consisting simply of a denial of the allegations of .the complaint. Upon the trial, the plaintiff fully established the fact of a copartnership existing between the. defendants, and that the plaintiff had sold such firm goods for a period of upwards of fifteen years; that the business was conducted undef the name of Burrell Brothers at all times, both before and after the transactions here in question ; that there had never been any change in the signs displayed at the place of business, in the stationery used, or in the bank account kept by the firm. With this state of facts established, giving rise to the legal presumption that thq copartnership still existed, and with no amendment of the pleadings, tlie defendant James Burrell attempted to show that there had been a dissolution of the partnership in 1905, and that notice of such dissolution had been conveyed to the plaintiff. This line of testimony was objected to on the part of the plaintiff and'admitted, the plaintiff taking exceptions; and it might be that as against persons dealing with llie firm after 1905, without previous dealings, the fact might be deemed to be supported by evidence. But as it relates to the plaintiff in this action, who had dealt for years with the defendants, it is certain that there was no evidence from which it could be spelled out that there was any notice given of a dissolution of the partnership or of any change in its personnel. The nearest possible' approach to the giving of notice is contained in the testimony of James Burrell, to the effect that in 1903 or 1904, a year or more " before the alleged dissolution of the partnership, lie said to one London, wdio appears to have been an agent of the plaintiff in the selling of meats, etc., that he intended to give his interest in the firm of Burrell Brothers to his clerk, but that his brother, Thomas Burrell, objected to this, and said he wanted it all himself. There is not the slightest evidence that James Burrell ever told London that he had given his interest to his brother, or that he would do so at any particular time; merely that he, at that time, had some such project in view.

As we gather the case from the record, the plaintiff established that James and Thomas Burrell were copartners at some time prior to the contracting of the obligations sued upon; that at the time such obligations were contracted there was nothing in the manner of doing business on the part of the defendants which was calculated' in any manner'to call attention to any alleged change in the copartnership. These facts were not disputed. The plaintiff was, therefore, entitled to judgment, unless it was made to appear that the plaintiff had sold goods to the firm of Burrell Brothers, knowing that James Burrell, the responsible member, had retired from the firm. Leaving out of consideration the question of pleading, and assuming that James Burrell might, under his general denial, disprove the existence of a partnership as between himself and the plaintiff, owing to the giving of notice of such dissolution, it must be clear from a reading of the testimony that he has failed in this particular, for it cannot be held that a mere talk about retiring from a partnership a year before it is suggested that such retirement took place, is not notice that such retirement actually took place a year or more later. The'most that can be said of such testimony is that it might possibly have required less evidence to show that the plaintiff had notice at the time of the retirement, because it might have had notice that such a thing was likely to occur; but the evidence in this case shows so conclusively that there was nothing from which any reasonably prudent person could have been led to know that there was any change whatever in the personnel of the firm or its manner of doing business that it would be preposterous to hold that the defendant had produced any evidence to support his alleged defense. On the contrary, it is difficult to read the record in this case without reaching the conclusion that the defendant, appellant, knowing that the concern was hopelessly insolvent, sought secretly to retire from the business and avoid the obligations, and that to accomplish this purpose he consented to have the affairs of the firm carried on in exactly the same ¡¡manner that they had been carried on all through its relations with the plaintiff.

The judgment and order appealed from should be affirmed, with costs.

Thomas, Rich and Carr, JJ., concurred; Jenks, J., concurred in the result.

Judgment and order affirmed, with costs.  