W. E. Purcell and L. B. Everdell, for appellant:
The unauthorized statements of a person that a partnership exists between certain persons will not bind the.person so charged. Lawson on Rights and Practice, § 642; 2 Greenleaf on Evidence, § 484; McPherson v. Rathbone, 7 Wend, 216; Whitney v. Ferris, 10 Johns. 66.
Ball & Smith, for respondents:
A partner, retiring from the firm, must give notice of his retirement or he will be liable to creditors of the continuing firm on purchases made by them after his retirement. 2 Bates on Partnership, § 606; Graves v. Merry, 6 Cow. 701; Williams v. Bowen, 15 Cal. 321; Bank v. Howard, 35 N. Y. 500; Amidon v. Osgood, 58 Am. Dec. 171.
The opinion of the court was delivered by
Barthotomew, J. There must be a new trial in this case. The action was on account for goods sold by the plaintiff firm to the firm of Gillitt Bros. Harvey Gillitt only made defense, and the sole issué was as to his membership in the firm of Gillitt Bros. The case was ‘tried in February, 1891. The court, on motion, directed a verdict for the plaintiff, and Harvey Gillitt appeals. The respondents began dealing with the firm of Gillitt Bros. in 1887. The goods for the value of which the action was brought were sold in August, 1888. To prove that Harvey Gillitt was or had been a member of the firm of Gillitt Bros. respondents introduced in evidence three certain exhibts. Two of these exhibits bear date May 18, 1888. The first purported to be a contract, by the terms of which George H. Gillitt and W. H. Gillitt purchased the interest of Harvey Gillitt in the mercantile business of the firm of Gillitt Bros., and stating the amount to be paid therefor, and the terms of payment, and from which it would appear that Harvey Gillitt had owned a half interest in the business, This contract is signed by the three parties. The second instrument is a bill of sale from Harvey Gillitt to George H. and W. H. Gillitt of such interest. The third instrument is a summary of the inventory taken in January, 1888, and would appear to be the basis upon which the other instruments
