Tobias v. Wierck

We need not consider the question of the defendants’ liability as part owners of the Havana, apart from any partnership contract. The claim here is not for necessaries and supplies suitable and proper for the ship. The defendants’ liability, if any, rests upon their alleged express contract. The plaintiff’s proof on this head was slight. He showed that in 1891 orders for advertising were brought to the plaintiff’s office by Hiedner, the defendants’ bookkeeper. Hiedner did this under the direction of one of the defendants. The plaintiff was represented in the transaction solely by his bookkeeper, Beyer; and he had nothing to do personally with the arrangements which Beyer made with the defendants. Beyer is dead; and the *488plaintiff’s case rests mainly upon the fact that, from time to time, his bills were rendered to, and paid by, the defendants’ firm Upon these facts, standing alone, the learned trial judge was perhaps justified in finding that the plaintiff’s earlier services were rendered upon the faith of the defendants’ credit. The difficulty is in extending that finding to the services rendered by the plaintiff after the transfer of the Ilavmuo to the Liberty Steamboat Company. We are unable to discover -any evidence to support the latter finding. In fact, we think it plain that the advertising now sued for was done for and upon the credit of this corporation.

The evidence on this head, due doubtless to the death of Beyer, is mostly documentary. It appears that, after the transfer, Beyer continued to make out bills in the name of Wierck & Co. These, however, were changed by the latter into the name of the company, and returned with corporate checks signed and countersigned by its officers. This was plain notice that Wierck & Co. refused any longer to be considered the plaintiff’s debtors, and insisted that the company now took that position. The plaintiff acquiesced in this by accepting the company’s checks, and thereafter making out the bills in its name. The effect of this evidence is precisely the same as that upon which the plaintiff claims to have made out a contract between himself and the defendants. Up to a certain point, the bills were made to, and paid by, the firm. Upon that the plaintiff claims that the defendants contracted with and pledged their credit to him. But when that course of business ceased ; when the bills Avere no longer thus made out and paid; when in fact they were made out to, and paid by, the corporation, the old arrangement ceased, and the neAV one Avent into effect. It is said that the former owners of the Havana might have continued business under the style of the Liberty Steamboat Company. That is true, but the plaintiff’s bookkeeper could have had no such understanding. There Avas no reason to suppose that this Avas a mere change of partnership name, and the form of the checks sent to the plaintiff, signed and countersigned by ostensible officers of the company, plainly indicated that a corporation had been formed.

The fact that the plaintiff did not personally learn of the formation of the corporation until later cannot aid him. He is bound by Beyer’s knowledge. He admits that the latter was acting for him, *489and. that lie attended to all the work “ excepting checking and the placing of the business.” -It was he who received orders, made out and receipted bills, and indorsed checks. The plaintiff merely took the orders and placed them.

Nor did the defendant John P. Wierck bind himself by the conversation with the plaintiff some two years later, to which the latter testified. The substance of this conversation was that Wierck agreed to pay a part of the plaintiff’s bill rather than be troubled with a lawsuit. What he offered was clearly as a compromise of a claim which he denied. There is nothing in what transpired at that interview, even as narrated by the plaintiff, to change the legal effect of the actual facts upon which the question of liability here rests. We think it clear that, even if the defendants were within the partnership rule, and were bound to give the plaintiff notice of the change in question, they in fact did so.

The judgment should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.