McCleery v. Thompson

1. A judgment confessed by one partner m the firm name, though for a firm debt, is void against the others, but is good against the partner confessing it, and under it partnership goods may be taken in execution. Grier v. Hood, 25 Pa. 480; Ross v. Howell, 84 Pa. 129. 2. Yet, where, after a partnership has been dissolved, such a note is executed by one partner and judgment entered thereon, the judgment against the firm and the other partner will be stricken off, even though the obligation was given for a partnership indebtedness to the plaintiffs.

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO 2 OF ALLEGHENY COUNTY. No 169 October Term 1889, Sup. Ct.; court below, No. 221 July Term 1889, C. P. No. 2. ■On June 15, 1889, upon a note under seal dated June 1, 1889, for $152.57, at one day after. date, to the order of Mc-Cleery, Mjmrs, Sedden & Co., with warrant of attorney to enter judgment, and purporting to be executed by “ Thompson & Brown,” a judgment was confessed in favor of the obligees for the amount thereof against “’A. H. Thompson and .George C. Brown, late partners as Thompson & Brown.” On June 20, 1889, George C. Brown presented his petition averring that A. H. Thompson and the petitioner had formed a copartnership for the purpose of dealing in groceries, etc.; that said firm in the course of its dealings with McCleery, Myers, Sedden & Co., became indebted to them in the sum of $152.57; that the copartnership of Thompson & Brown was dissolved by mutual consent on June 5, 1889, the petitioner purchasing from said Thompson his entire interest in said business and firm, and that exclusive possession and control of the property and assets of the firm were immediately transferred to the petitioner, who agreed, in consideration thereof, to assume and pay all the debts of said firm, including the indebtedness to McCleery, Myers, Sedden & Co., and thereafter said Thompson had no authority whatever to act for said firm or to bind it in any way. The petitioner further averred that the said A. H. Thompson executed the note upon which judgment was entered on or after June 14, 1889; that the plaintiff firm, at the time of obtaining said note, well knew of the dissolution of the firm of Thompson & Brown, and that the petitioner had assumed payment of the debts of said firm. Wherefore the petitioner prayed the court to strike off the judgment entered, as to George C. Brown, and also as to the firm of Thompson & Brown. To the rule granted upon the foregoing petition, the plaintiffs answered, averring, inter alia, that the note upon which judgment was entered was given to them for a copartnership liability of the defendant firm, and attached to their answer the affidavit of A. H. Thompson, which averred: “that said note was signed by affiant for goods and merchandise receivod by Thompson & Brown, as aforesaid, and still remains due and unpaid as claimed by plaintiffs, as aforesaid. Affiant further says, that when the said George C. Brown pays his check for $77.50, the firm should be dissolved; and that said George C. Brown was to pay all debts of said defendant’s firm, and which check of $77.50 has not been paid until this date, and the debts of said firm are not paid, and the said firm is not dissolved until the said George C. Brown pays affiant said check of $77.50, as aforesaid; and no agreement was signed by affiant waiving his right not to sign notes, etc., and affiant had the right to sign said note to plaintiffs; and said check can be produced in court, and said cheek is dated after said note is dated, and the payment of said note is a benefit to both defendants, and defendants have no defence to same, as affiant is1 informed and believes.” Depositions having been taken and filed, and argument had, the court in banc, Ewing, P. J., on July 29, 1889, without opinion filed, made the rule absolute, and ordered that the judgment as to George C. Brown and Thompson & Brown be vacated. Thereupon the plaintiffs took this appeal, assigning the said order for error.