tion appoint an agent to settle their affairs it has been held that a person with notice of such fact deals with one of the former partners at his peril.182

§ 2573. Admissions after dissolution.-As the community of interest as well as the agency of the partner terminates on the dissolution and the authority of each to bind the firm ceases, it follows as a rule that one of the partners after dissolution cannot bind the others by an admission of liability.133 And it has been held that a partner after dissolution cannot take a case out of the operation of the statute of limitation by an admission of liability, new promise, or partial payment.184 The rule on this subject is stated as follows: "After dissolution, a partner's authority to bind his co-partner is limited to acts necessary or proper for the winding up of the partnership affair."135

§ 2574. Dissolution-Release from liability.-The mere dissolution of a firm will not of itself absolve the individual partners from future liability, especially where the business is continued in the same name. In order to avoid liability the persons retiring from the firm must give notice of the dissolution and that they are no longer members of the firm. Where the business is continued the former members are liable to persons who have previously dealt with the firm and who have received no notice of the dissolution.186 A notice generally is not of itself sufficient to relieve from liability in such cases; the

133 Hilton v. Vanderbilt, 82 N. Y. 591.

133 Barnes v. Northern Trust Co., 169 Ill. 112, 48 N. E. 31; Hackley v. Patrick, 3 Johns. (N. Y.) 536; Smith v. Ludlow, 6 Johns. (N. Y.) 267; Walden v. Sherburne, 15 Johns. (N. Y.) 409; Hopkins v. Banks, 7 Cow. (N. Y.) 650; Hart v. Woodruff, 24 Hun (N. Y.) 510; Brisban v. Boyd, 4 Paige Ch. (N. Y.) 17; Myers v. Standart, 11 Ohio St. 29; Feigley v. Whitaker, 22 Ohio St. 606.

134 Tate v. Clements, 16 Fla. 339; Van Keuren v. Parmelee, 2 N. Y. 523; Levy v. Cadet, 17 S. & R. (Pa.)

126; Reppert v. Colvin, 48 Pa. St. 248; Bush v. Stowell, 71 Pa. St. 208; Jack v. McLanahan, 191 Pa. 631, 43 Atl. 356; Davis v. Poland, 92 Va. 225, 23 S. E. 292; Bell v. Morrison, 1 Pet. (U. S.) 351; Forbes v. Garfield, 32 Hun (N. Y.) 389; Clement v. Clement, 69 Wis. 599, 35 N. W. 17.

135 Shumaker Partnership, § 148.

136 Duff v. Baker, 78 Iowa 642, 43 N. W. 463; Stimson v. Whitney, 130 Mass. 591; Hixon v. Pixley, 15 Nev. 475; Palmer v. Dodge, 4 Ohio St. 21; Clement v. Clement, 69 Wis. 599, 35 N. W. 17.

proof must show that the notice was brought home to all persons who had formerly dealt with the firm. This rule was carried to the extent of holding that the old firm was liable to a creditor that had not previously dealt with the firm; but generally speaking there must be actual notice to those who have dealt with the firm in order to protect a partner after dissolution.137 In such cases it is sufficient to prove that the creditor had knowledge of the dissolution of the firm. or withdrawal of the partner.138 But receipt of a notice must be proved and it has been held insufficient to prove that a written notice was mailed to the creditor.139 Notice given to the agent with whom the contract was made was held sufficient.140 And a general notice by publication to the world of the dissolution or retirement of the partner has been held sufficient to all persons except former customers.

141

§ 2575. Accounting-Burden of proof.-In an action for an accounting where a partner claims a balance due him from the firm, and where no entries have been made of the account at the time of the alleged settlement, the burden is upon the plaintiff to prove the indebtedness.142 In such an action it is held that the plaintiff must produce the evidence necessary to fix the rights of the partners, or there can be no recovery.143 So where the partnership affairs have been adjusted and the settlement of the account signed by the partners, the

137 Nicholson v. Moog, 65 Ala. 471; Joseph v. Southwark &c. Co., (Ala.) 10 So. 327; Richards v. Hunt, 65 Ga. 342; Meyer v. Krohn, 114 Ill. 574, 2 N. E. 495; Strecker v. Conn, 90 Ind. 469; Iddings v. Pierson, 100 Ind. 418; Rose v. Coffield, 53 Md. 18; Sibley v. Parsons, 93 Mich. 538, 53 N. W. 786; Martin v. Fewell, 79 Mo. 401; Stoddard Mfg. Co. V. Krause, 27 Neb. 82, 42 N. W. 913; National Shoe &c. Co. v. Herz, 89 N. Y. 629; Speer v. Bishop, 24 Ohio St. 598; Long v. Garnett, 59 Tex. 229; Gilchrist v. Brande, 58 Wis. 184, 15 N. W. 817.

138 Uhl v. Bingaman, 78 Ind. 365; Backus v. Taylor, 84 Ind. 503; Kehoe v. Carville, 84 Iowa 415, 51 N. W. 166; Martin v. Walton, 1 Mc

Cord (S. Car.) 16; Prentiss v. Sinclair, 5 Vt. 149.

139

Meyer v. Krohn, 114 Ill. 574, 2 N. E. 495.

140 Hunt v. Colorado &c. Co., 1 Colo. App. 120.

141 Joseph V. Southwark &c. Co., (Ala.) 10 So. 327; Rocky Mountain &c. Bank v. McCaskill, 16 Colo. 408; Richardson v. Snider, 72 Ind. 425; Rose v. Coffield, 53 Md. 18; Polk v. Oliver, 56 Miss. 566; Stoddard Mfg. Co. v. Krause, 27 Neb. 83, 42 N. W. 913.

142 McCabe v. Franks, 44 Iowa 208; Camblat v. Tupery, 2 La. Ann. 10; McMichael v. Raoul, 14 La. Ann. 307; Maupin v. Daniel, 3 Tenn. Ch. 223.

143 Camblat v. Tupery, 2 La. Ann.

burden is on the partner complaining to show an error in the settlement or that the firm is indebted to him.144 This rule as to the burden has been carried to the extent of holding that the evidence must be most satisfactory for the ascertainment of the true balance between the partners.145 And in an action for a settlement and an accounting the burden has been held to be on the plaintiff to prove a dissolution of the firm.146 In an action for an accounting where a partner fails to produce the books of accounts in his possession, an account may be stated by presuming everything against him ;147 but the absence of the firm books may prevent the stating of an account where the bill and answer are conflicting. 148

144 Bry v. Cook, 15 La. Ann. 493. 145 Davidson v. Wilson, 3 Del. Ch. 307.

147 Walmsley v. Walmsley, 3 Jones & La T. 556.

145 Davidson v. Wilson, 3 Del. Ch.

148 Gossett v. Weatherly, 5 Jones 307. Eq. (N. Car.) 46.

CHAPTER CXVIII.

PAYMENT.

2576. Burden of proof-Kinds of 2583. Collateral evidence as to pay

§ 2576. Burden of proof-Kinds of evidence.-It is generally held that the burden of proving payment is on the party pleading it.1 So, the burden of proving the acceptance of something else than money in payment, when such acceptance is required to be proved, is upon the party alleging it.2 Payment may be proved by circumstantial as well as direct evidence, and by parol as well as written evidence. It has

1073

also been held that under a plea of payment in full proof of payment in part may be made. If the payment was made to a third person on behalf of the creditor, or was made in property the burden is upon him of showing that such payment discharged the debt. Thus where payment was made to the bank at which the creditor had his account, it was held that it must be shown that he authorized the bank to receive the money, or that with knowledge of such payment he assented to it. And it has been held that where payment to the president of a corporation of a debt due the corporation is relied on, circumstances which made the payment to such officer amount to payment to the corporation itself must be proved. So, generally, the authority of another to whom the money was paid to receive it for the creditor must usually be affirmatively shown." If the giving of other notes of the debtor is relied on as payment, the defendant must prove that such notes were accepted by the creditor in full payment of the debt,1o unless in some jurisdictions the notes are negotiable. As elsewhere shown, the giving and acceptance of paper executed by the debtor

186; Davis v. Hare, 32 Ark. 386; Smith V. Boruff, 75 Ind. 412; Ketcham v. Hill, 42 Ind. 64; Wolf v. Foster, 13 Kans. 116, 118; Fisher v. George S. Jones Co., 93 Ga. 717, 21 S. E. 152; Denham v. Walker, 93 Ga. 497, 21 S. E. 102; Holden v. Parker, 110 Mass. 324; Riley v. Pettis County, 96 Mo. 318, 9 S. W. 906; Shaffer v. McCrackin, 90 Iowa 578, 58 N. W. 910, 48 Am. St. 465; Whiteside v. Hoskins, 20 Mont. 361, 51 Pac. 739; Keene v. Mead, 3 Pet. (U. S.) 1; see Vol. I, § 261.

Ballard v. Turner, 58 Ind. 127; Lord v. Ferrand, 1 Dowl. & L. 630. But see Longworth v. Higham, 89 Ind. 352.

6 Maynard v. Black, 41 Ind. 310; Olvey v. Jackson, 106 Ind. 286, 290, 4 N. E. 149; Sutton v. Baldwin, 146 Ind. 361, 45 N. E. 518; Bedford Belt R. Co. v. Burke, 13 Ind. App. 35, 41 N. E. 70; Wipperman v. Hardy, 17 Ind. App. 142, 150, 46 N. E. 537; Tulley v. Citizens' State Bank, 18 Ind. App. 240, 47 N. E. 850. See

also, Security Co. v. Greybeal, 85 Iowa 543, 39 Am. St. 311.

'Bedford Belt R. Co. v. Burke, 13 Ind. App. 35, 41 N. E. 70. See also, Rochester &c. R. Co. v. Babcock, 110 N. Y. 119, 17 N. E. 678; Coburn v. Hough, 32 Ill. 344.

8

Tulley v. Citizens' State Bank, 18 Ind. App. 240, 47 N. E. 850; Rush v. Fister, 23, Ill. App. 348; Eaton v. Knowles, 61 Mich. 625, 28 N. W. 740; Seymour v. Smith, 114 N. Y. 481, 11 Am. St. 683.

Maynard v. Black, 41 Ind. 310. But it need not be express, and there may be a ratification, Barrett v. Deere, M. & M. 200, Rosc. N. P. 657; Bronson v. Chappell, 12 Wall. (U. S.) 681; Abbott's Tr. Ev. (2d ed.) 1016.

10 Tilford v. Miller, 84 Ind. 185; Olvey v. Jackson, 106 Ind. 286, 291, 4 N. E. 149; Wipperman v. Hardy, 17 Ind. App. 142, 46 N. E. 537; Orner v. Sattley &c. Co., 18 Ind. App. 122, 47 N. E. 644; Combs v. Bays, 19 Ind. App. 263, 49 N. E. 358.