1 Snaith v. Burridge, 4 Taunt. 684; Rogers v. Batchelor, 12 Peters, 221; Story on Part. 110; Coll. on Part. B. 3, ch. 1, p. 259 to 282, 2d ed.; Green v. Deakin, 2 Stark. 347; Hope v. Cust, 1 East, 53; Story on Agency, § 125; Ex parte Agace, 2 Cox, 312; Watson on Part. ch. 4, p. 180, 2d ed.; Farrar v. Hutchinson, 9 Ad. & El. 641; Arden v. Sharpe, 2 Esp. 524; Ex parte Goulding, 2 Glyn & Jam. 118.
2 Blair v. Bromley, 5 Hare, 542.
3 Frankland v. M'Gusty, 1 Knapp, 274; Ex parte Bonbonus, 8 Ves. 540; Lloyd v. Freshfield, 9 Dowl. & Ryl. 19; Gansevoort v. Williams, 14 Wend. 133; Dob v. Halsey, 16 Johns. 34. If one partner delivers property of the firm, in fraud of the others, to a person in payment of a private debt due him, this binds the whole firm. Farley v. Lovell, 103 Mass. 387 (1869); approving Homer v. Wood, 11 Cush. 62.
4 Rogers v. Batchelor, 12 Peters, 229.
5 Ibid.; Ridley v. Taylor, 13 East, 175; Williams v. Thomas, 6 Esp. 18; Livingston v. Roosevelt, 4 Johns. 251; 3 Kent, Comm. lect. 43, p. 44; N. Y. Firemen Ins. Co. v. Bennett, 5 Conn. 574; Austin v. Vandermark, 4 Hill, 259; Wells v. Evans, 20 Wend. 251; s. c. 22 Wend. 324; Waldo Bank v. Lumbert, 16 Me. 416.
§ 311. If, however, credit be exclusively given to a particular partner, in any contract, he only will be bound; and the same rule applies as that which obtains in contracts of agents.2 Such credit must, however, be exclusive; and in order to be deemed exclusive, must be given with full knowledge of all the parties interested.3 The rule applicable in cases of mere agency does not apply to the case of credit given to an ostensible partner, where there are unknown dormant partners; because the creditor is in such case deprived of the right of choosing his debtor. So, also, the rule does not apply to the case of a partnership carried on in the sole name of one partner, who at the same time transacts business on his own separate account, provided the contract be made in behalf of the partnership.4 But where a note is signed by a partner in his individual name, and not in the. name of the firm, the firm is not responsible therefor, unless they had treated the note as their own.1
1 Gram v. Cadwell, 5 Cow. 489; Evernghim v. Ensworth, 7 Wend. 326; Shirreff v. Wilks, 1 East, 48; Story on Part. § 133, 134, 135; Farrar v. Hutchinson, 9 Ad. & El. 641; Ex parte Bonbonus, 8 Ves. 540; Gow on Part. ch. 4, § 1, p. 149, 3d ed.; Coll. on Part. B. 3, ch. 2, p. 331 to 347, 3d ed.; Frankland v. M'Gusty, 1 Knapp, 272; Loyd v. Fresh-field, 2 C. & P. 325; Foot v. Sabin, 19 Johns. 154; Dob v. Halsey, 16 Johns. 34; Gansevoort v. Williams, 14 Wend. 133; Rogers v. Batchelor, 12 Peters, 229.
2 See Chapman v. Devereux, 32 Vt. 616 (1860).
3 It will be considered exclusive if there be an arrangement, known to one dealing with the firm, that one of the partners shall not be liable for purchases made by the firm on credit. Hastings v. Hopkinson, 28 Vt. 108 (1855).
4 Gow on Part. ch. 4, § 1, p. 162; Story on Agency, § 291, 292. See ante, Agency, and cases cited. Hoare v. Dawes, Doug. 371; Story on Part. § 138, 139; 2 Kent, Comm. lect. 41, p. 630, 631, 4th ed.; Paley on Agency, by Lloyd; Thomson v. Davenport, 9 B. & C. 78; U. S. Bank v. Binney, 5 Mason, 176; Winship v. Bank of U. S., 5 Peters, 529; Kelley v. Hurl-burt, 5 Cow. 534; Mifflin v. Smith, 17 S. & R. 165. This principle only applies to commercial partnerships, however. Pitts v. Waugh, 4 Mass. 424; Smith v. Burnham, 3 Sumner, 435; Saville v. Robertson, 4 T. R. 725; Robinson v. Wilkinson, 3 Price, 538; Melledge v. Boston Iron Co., 5 Cush. 158; post, § 1343.
§ 312. An incoming partner will not be liable in respect to debts contracted by the firm previously to his becoming a member, unless he expressly or impliedly assume such responsibility. The presumption of law is against his liability, but it may be repelled by proof.2
§ 313. A retiring partner will, however, be responsible to creditors of the firm for debts contracted while he was a member, notwithstanding any private agreement between the partners relative to his responsibility, unless the creditors assent to such arrangement, and agree to consider the remaining partners as their exclusive debtors.3 So, also, if an ostensible partner retire from a firm, he will be responsible for all debts and liabilities of the firm contracted subsequently to his retirement, with persons having no knowledge thereof, who have previously dealt with the firm. For the fact of his being a partner may be the only ground upon which credit was given to the firm; and every one who deals with the firm, without notice of such fact, is entitled to give credit to all of the members.4 But if such person be a dormant partner, he will not be liable for any debts contracted after he retires from the firm; because credit cannot be supposed to have been given to him, he never having been held out as a partner. An ostensible partner is, therefore, bound to give notice of his retirement to all creditors with whom he has previously dealt, in order to limit his responsibility in future transactions; and if loss accrue in consequence of his omission so to do, he must suffer the consequences of his own negligence.1 But no notice of retirement need be given, by either an. ostensible or a dormant partner, to persons with whom the firm has had no previous dealings, unless such partner allow his name to be used as if he were one of the firm; in which case he will be responsible to any one who is thereby deceived.2
1 Emly v. Lye, 15 East, 7; Siff kin v. Walker, 2 Camp. 308. See ante, §302.
2 Coll. on Part. B. 3, ch. 3, § 2, p. 361, 2d ed.; Story on Part. § 152; Shirreff v. Wilks, 1 East, 48; Williams v. Jones, 5B.&C. 108; Vere v. Ashby, 10 B. & C. 289; Catt v. Howard, 3 Stark. 5; Ex parte Jackson, 1 Ves. Jr. 131; Kirwan v. Kirwan, 2 Cr. & Mees. 617; Helsby v. Mears, 5 B. & C. 504; Ex parte Peele, 6 Ves. 602; Hoby v. Roebuck, 7 Taunt 157; Ketchum v. Durkee, Hoffm. 538; Babcock v. Stewart, 58 Penn. St. 179 (1868).
3 Coll. on Part. B. 3, ch. 3, § 3, p. 383 to 398, 2d ed.; Evans v. Drum-mond, 4 Esp. 89; Reed v. White, 5 Esp. 122; Thompson v. Percival, 5 B.
6 Ad. 925; Oakeley v. Pasheller, 10 Bligh (n. s.), 548; 4 CI. & Finn. 207; Gough v. Davies, 4 Price, 200; Harris v. Lindsay, 4 Wash. C. C. 271; Hart v. Alexander, 2 M. & W. 484; Daniel v. Cross, 3 Ves. Jr. 277; Bedford v. Deakin, 2 B. & Al. 210; Featherstone v. Hunt, 1 B. & C. 113; Blew v. Wyatt, 5 C. & P. 397; Smith v. Rogers, 17 Johns. 340; Story on Part. § 158, 159. See Richards v. Fisher, 2 Allen, 527.
4 See Spaulding v. Ludlow Woollen Mill, 36 Vt. 150 (1863).
§ 314. Notice may be either express or implied. To all persons, who have been accustomed to deal with the firm previously, express notice should be given. Knowledge of the fact, however it be obtained, is sufficient notice, however; and if the circumstances, under which such person deals with a firm subsequently to the retirement of one partner, be such as to raise the presumption of his knowledge of the fact, notice will be inferred, and he must prove his ignorance, to entitle himself to recover against the retired partner. The question of notice is, ordinarily, a matter compounded of law and fact, which must depend upon the circumstances of each particular case, and is for the determination of a jury. Notice in any public gazette in the place where the partnership exists is sufficient notice to all persons, who have not previously dealt with the firm, whether it be seen by them or not; and such notice is sufficient to create a presumption of knowledge on the part of every one, unless the retiring party, by some act or omission, actually or apparently continue his liability.1 The same rule, in regard to notice, also obtains in case of a dissolution of the partnership by the act of the partners.2
1 Coll. on Part. B. 3, ch. 3, § 3, p. 369 to 375, 2d ed.; 3 Kent, Comm, lect. 43, p. 66, 67, 68, 4th ed.; Gow on Part. ch. 5, § 2, p. 248 to 251; Story on Part. § 160, 161; Graham v. Hope, Peake, 154; Gorham v. Thompson, Peake, 42; Watson on Part. ch. 7, p. 384, 385.
2 Parkin v. Carruthers, 3 Esp. 248; 3 Kent, Comm. lect. 43, p. 67, 68; Williams v. Keats, 2 Stark. 290; Brown v. Leonard, 2 Chitty, 120; New-some v. Coles, 2 Camp. 617; Dolman v. Orchard, 2 C. & P. 104; Tombeck-bee Bank v. Dumell, 5 Mason, 56; Lansing v. Gaine, 2 Johns. 300; Ketcham v. Clark, 6 Johns. 144, 148; Carter v. Whalley, 1 B. & Ad. 11; Le Roy v. Johnson, 2 Peters, 198, 200.
§ 315. If a retiring partner fraudulently withdraw a portion of the partnership funds, when the partnership is insolvent, he will be responsible, whether notice of his retirement be given or not. It is, however, on account of the fraud that he is held liable, and unless it exist, he will not be responsible.3 A retiring partner who conceals his withdrawal, and allows the remaining members to contract in the name of the old firm, is liable to those who give them further credit on the faith of the continuance of the former partnership.4