this constituted a contract, binding on each of the partners composing the latter firm, to account for the goods or their proceeds. Such liability could not be canceled by any act of the latter firm alone, or by any agreement its different members might make among themselves, in which Hall & Long did not concur. It requires the same mutuality to vary or modify a contract as it does to create it in the first instance, for modification is only a species of contract. The mutual agreement of the parties, a promise for a promise, is sufficient to uphold such modified contract, without other new consideration. Thomason v. Dill, 30 Ala. 455, 456, and authorities cited.

Failure to demand payment of Mr. Jones, unless for a sufficient length of time to create a bar by limitation, did not, per se, cancel his liability. Neither would the demand of payment from the succeeding firm, or even the receipt of interest on part payment, or all these combined, necessarily lead to such result. The true inquiry is, was there an agreement to discharge the older partnership, and to substitute the new one as the debtor? Unless this be shown, the liability of the older firm remains.

Speaking on this question, Mr. Parsons, in his work on Partnership (page 425), says: "Frequently the new firm goes on in its regular business, the accounts of the customers are transferred from the old to the new, and the customers, knowing the retirement and change of parties and transfer of accounts, say nothing, but continue their dealings with the new firm, perhaps depositing and drawing, or buying` and selling, or receiving interest and settling accounts, all just as before, taking no particular notice of the change. The question then occurs, what is the legal significance and effect of such conduct? And it seems to be well settled that the mere receiving of interest from the new firm will not discharge the old; and although the transferring the old account to the new firm is not necessarily an adoption by the creditor of the new firm as his sole debtors, yet this fact, together with the other circumstances of the case, may be evidence from which a jury would be authorized to find that the creditor had impliedly assented to a discharge of the old firm." He adds "that, when the liability at a given time of all the partners is proved, the burden is on those of them who seek to escape continued liability, to show a cessation." *

It is not necessary, nor do we feel inclined, to adopt some of the extreme views advanced above. Still we hold that, to discharge a retiring partner from a liability once incurred, the facts and circumstances must satisfy the jury that the plaintiff agreed to release the old and look to the new firm. Proof, if made, that the accounts against the old firm were restated against the new, would be strong evidence from which an agreement might be inferred; but it is not for us to declare what will be sufficient evidence to satisfy the minds of the jurors. We agree with Baron Garrow that, whenever there is any

evidence from which such agreement could be inferred, then the question of agreement vel non should be submitted to the jury in a charge appropriate to the testimony in the cause.

III. DISSOLUTION.

LYON et al. v. JOHNSON et al.

(Supreme Court of Errors of Connecticut, 1859. 28 Conn. 1.) Assumpsit for coal sold to the defendants as partners. It was claimed in defense that the partnership between the defendants had been previously dissolved and sufficient notice of the dissolution given. The defendants, Johnson and Signor, previous to the 9th day of March, 1857, had been in partnership in the town of Danbury under the name of R. Johnson & Co., and as such partners had in the fall of 1856 purchased coal of the plaintiffs, who also did business in Danbury as partners under the name of Lyon & Burr. On the 9th day of March, 1857, the firm was dissolved, and the business was thereafter carried on by Signor alone. Notice of the dissolution was published for three successive weeks in the Danbury Times, a weekly paper published in Danbury; but no other notice was given to the plaintiffs. In the fall of 1857 Signor bought a quantity of coal of the plaintiffs, which they sold and delivered upon the credit of the firm of R. Johnson & Co., and in the belief that he bought it for that firm. The advertisement of the dissolution of the partnership of the defendants was inserted in the newspaper next after an advertisement of the plaintiffs; but the plaintiffs did not take the paper, and had not seen the notice of the dissolution, and had no knowledge that the partnership was dissolved. The sale of coal by the plaintiffs to the defendants in 1856 was the only previous dealing of the firm of Lyon & Burr with the defendants; but for some years before the defendants had bought coal of the firm of Lyon & Bates, a firm of which the plaintiff Lyon was a member, and which was dissolved in the summer of 1856; Bates retiring from the business, and Lyon forming a new partnership with Burr, who had been a clerk of Lyon & Bates, and the new firm taking and continuing the business of the former firm.

The case was tried in the superior court on an issue closed to the court. The court specially found the above facts and rendered judgment thereon for the plaintiffs. The defendants thereupon filed a motion in error and brought the record before this court for revision.

BUTLER, J. There is no error in the judgment of the court below, and this will be apparent from a brief statement of the principles applicable to the case.

By the constitution of a general partnership, and as one of the elements of it, each partner is vested by his copartners with power to

7

contract for and bind the firm within the scope of the partnership business. Each is constituted the agent of all, and each is responsible for the acts of all.

Once existing, and publicly known to exist, the continuance of the connection will be presumed by the public till the contrary appears. If a dissolution takes place by operation of law, as by death or bankruptcy, no notice is required. The operations of law have a notoriety which all are bound to regard. But a dissolution by limitation, or the voluntary and mutual assent of the partners, is a matter of private arrangement, which cannot be presumed to be known to others unless they are informed of it. Until such information is given, actually or constructively, therefore, the continuance of the connection, and of the powers and liabilities of each partner, may well be presumed by every one who has occasion to deal with either on account of the firm. It follows upon the principles of justice and policy, and in conformity with the perfectly well settled rule of law, that upon such a dissolution of the partnership a retiring partner, who wishes to do justice to others and terminate his own responsibility, is under the obligation to give information of the fact to all who have dealt or are dealing with the firm, and to the public at large, with whom new attempts to deal may be made. It is equally clear that the notice so given by a retiring partner should be coextensive with the obligation assumed and as particular and specific as can be reasonably required of him under the circumstances of the case. He knows or may know who the persons are who have dealt with the firm, and he can, without unreasonable effort, give each of them actual notice, and therefore the law requires that, he should do so. He cannot, without more effort or expense than can reasonably be demanded of him, give actual notice to every other member of the public, and therefore the law does not require it; but it does require him to discharge his obligation if he would terminate his liability, and to give some, and reasonable, notice to the public at large. Ordinarily a publication in one of the newspapers published in the place or county where the partnership business was conducted, as it is the customary mode of giving such information, will, as to all who have not had previous dealings with the firm, be deemed sufficient. That is the least that can be required of him in an ordinary case in respect to the public, and even that may not in all cases be sufficient, and whether it be or not will depend on the circumstances of the particular case. But in relaxing the rule as applicable to those who have not dealt with the firm, and considering a general notice, operating as a constructive notice, to be sufficient as to them, because of the difficulty of giving actual notice to everybody, the courts have not intended to relax, and have not relaxed, the rule in respect to those who have dealt with the firm. As to them there is no reason for such relaxation, and a publication is never sufficient, unless, indeed, it can be shown that the publication was seen by them, and therefore that they in fact had actual knowledge.

In this case the dissolution of the firm of R. Johnson & Co. was voluntary, and not by operation of law. The plaintiffs had previously dealt with the firm, and upon the facts found they may well be considered as regular dealers. No actual notice of the dissolution was given them, and it is found that they had no actual knowledge of it.

The publication, unless it came to their knowledge, was not as to them sufficient. The character of their previous dealing and the circumstances attending the publication of the notice, including the contiguity of the advertisements, were proper matters of evidence to be taken into consideration by the court in the question whether the plaintiffs actually knew of the dissolution or not. Doubtless the court considered them. But having found that no actual notice was given to the plaintiffs, and that they did not see the publication, and had no actual knowledge of the dissolution, and that there had been previous dealing between the parties, the court correctly rendered judgment for the plaintiffs.

The judgment of the superior court is therefore affirmed.
Judgment affirmed.

AUSTIN v. HOLLAND.

(Court of Appeals of New York, 1877. 69 N. Y. 571, 25 Am. Dec. 246.) This action was on a promissory note made in the firm name of Dillon, Beebe & Co., payable to Horace Loveland. Defendant Holland alone appeared and answered. He admitted the making of the note, and that the plaintiff was the holder, but denied that he was a member of the firm. Defendants were copartners under the above firm name prior to the giving of the note. Judgment for the plaintiff on the verdict was affirmed at the General Term of the Supreme Court, and defendant appealed.

ANDREWS, J. The plaintiff was a dealer with the firm of Dillon, Beebe & Co., so as to entitle him to the protection of the rule which makes a retiring partner liable for subsequent engagements made by his former copartner in the firm name with those who had previous dealings with the firm, and who entered into the new transaction without notice of the change in the partnership. *

* *

The principal question in this case is whether Loveland had notice of the dissolution of the firm of Dillon, Beebe & Co., which occurred March 29, 1869, prior to August 31, 1869, when the note upon which the action was brought was made. The firm was engaged in the business of the purchase, shipment, and sale of lumber, and its principal office was at Toledo, in the state of Ohio. The plaintiff was employed to purchase lumber in the Western States and in Canada, and resided at Detroit. Notice of dissolution was published in the newspapers at Toledo, and a copy was mailed to the plaintiff, addressed to him at Detroit.

Loveland, on his direct examination, testified positively that he never received the notice. On his cross-examination he stated that he had no recollection of receiving or seeing the notice, and that, if he had seen it, he thought he should have remembered it. The judge submitted it to the jury to find whether the plaintiff received the notice. The defendants' counsel excepted to the submission of the question to the jury, on the ground that the jury would not be justified in finding from the evidence that the plaintiff did not receive the notice, and upon the further ground that it was immaterial whether he received it or not; that the mailing of the notice was all that the defend-, ant was required to do to protect him from liability for the subsequent services of the plaintiff.

The publication of notice of the dissolution of a partnership in a newspaper at the place where the business was carried on is notice to all persons who have not had prior dealings with the firm; and, if thereafter one of the partners enters into a contract in the firm name with a new customer or dealer, the other partners will not be bound. The rule is different in respect to persons who have dealt with the firm before the dissolution. The rule in such cases in this state requires that, to relieve a retiring partner from subsequent transactions in the partnership name, notice of the dissolution must be brought home to the person giving credit to the partnership. If in any way, by actual notice served, or by seeing the publication of the dissolution, or by information derived from third persons, the party, at the time of the dealing, is made aware of the fact that the partnership has been dissolved, the contract will not bind the firm. It is sufficient to exempt the firm from liability that the person so contracting with a partner in the firm name knew or had reason to believe that the partnership had been dissolved; but this must appear and be found by the jury, or else the contract will be treated as the contract of the partnership. Ketchum v. Clark, 6 Johns. 144, 5 Am. Dec. 197; Graves v. Merry, 6 Cow. 701, 16 Am. Dec. 471; Vernon v. Manhattan Co., 17 Wend. 524; Id., 22 Wend. 183; National Bank v. Norton, 1 Hill, 572; Coddington v. Hunt, 6 Hill, 595; Clapp v. Rogers, 12 N. Y. 287; City Bank v. McChesney, 20 N. Y. 242; Bank of Commonwealth v. Mudgett, 44 N. Y. 514; Van Eps v. Dillaye, 6 Barb. 244; Mechanics' Bank v. Livingston, 33 Barb. 458. In Vernon v. Manhattan Co., the Chancellor says: "But, to exempt the copartners from liability (on a contract with a previous dealer with the firm), the jury must be satisfied that the person with whom the new debt was contracted either had actual notice that the copartnership was dissolved, or that facts had actually come to his knowledge sufficient to create a belief that such was the fact." The same rule is recognized in the other cases cited, and by elementary writers. 3 Kent's Com. 607; Story on Part. § 161; Coll. on Part. § 533; Lindley on Part. 337. Lindley says: "Those who have dealt with the firm before a change took place are entitled to assume, until they have notice to the contrary, that no change has occurred.