Judson was concerned, and the only controversy left open was whether the aotion of Sherman & 'Marsh in transferring these receipts to Judson was effective in law to clothe the barb-wire company with a valid interest in them as against their assignee. The court, in other words, is only called upon to decide whether these receipts belong to the complainant, by virtue of the assignment to him for 'the benefit of the creditors of Sherman & Marsh, or whether they are wholly or in part to be applied in the manner directed by the transfer to Judson. Judson appears from the allegations in the bill, and his own confession of the truth of those allegations, to have no interest now in this controversy, and had none.at the time of the application for remov:al. . . It is urged, however, if the complainant was to dismiss the bill, it would be the duty of the court to direct the receiver to return the receipts to Judsonj but this does not seem to me any reason why the remaining defendant shquld not be8110wed to have the contr()\;ersy between rimself and the complainant decided in this court, as this court.can as easily order the receipts returned to Judson by the receiver as could the state -court in the same contingency, if it shall appear that they ought to be .so returned. For these reasons I shall overrule the motion to remand.
BLOCH 'V. PRICE
(Circuit Cl>urt, E. D. Mi8,ouri, E. D. October 28,1687,>
PARTNERSHIP-CONTRAOTS WITH-DISSOLUTION-LIABILITY NER. ItETIlUNG; P4Rf-
Acommission tlrm in St. composed of four members, was accustomed to send "price-currents" to all shippers who had ever had dealings with it. . The caption of these gave the tlrm ilame as well as the names of the individual partners. The plaintiff, who lived in Kansas, 'and who had made a shipment of wool in June, 1882, received these lists prior and subsequent. to' that da.te,. dl,lr.in g the season Of. tha.t yeoar., a. .. the foUowingseasons O.f 1883-84 .. and in June, 1885, on the fifth day of which month he made his second a"lid last consignment. One ·of· the partners retired from ,the tlrm in· February, '1882; an other the following November; and the third about a, year later. The however, was continued under the old name, with their conseI;l.t. After November, 1883, the listS sent the plaintiff no longer showed the individual names. but in all other respects were the same. The partnership was formally dissolved July 1, 1884, and on that date notices were published for three successive days in the local papers and circulars mailed to correspondents. The plaintiff did not receive a copy ofthe circular, nor had he anyknowl. edg-e of any change in the tlrm when he made the shipment of June 5,. 1885. Held, that the plaintiff was entitled to notice of the several changes in the firm; and having made the shipment in good faith and on the credit of the firm, lie was entitled to a recovery against all themembera for the conversion of the proceeds of its sale. .
Mills &:Flitcrajt, for plaintiff· .charles M. Napton, for defendants.
BLOCH V. PRICE.
THAYER, J., (orally.) The suit of A. Bloch against William M. Price, Stephen G. Price, Darwin W. Marmaduke, and Leslie Marmaduke is an action to recover a debt contracted by Stephen G. Price alone, while doing business in the name of Price, Marmaduke & Co. The case as respects D. W Marmaduke has been disposed of by a ruling made a few days since on his plea of former adjudication, which plea was E'ustained. Ante, 447. The facts on which the decision depends are as follows: I state the facts as found by the court from the testimony, some of which are not controverted, while others are in dispute. The firm of Price, Marmaduke & Co. was organized in the fall of 1881, to do a general commission business in the city of St. Louis, Missouri, and was composed of the four defendants last named. D. W. Marmaduke retired from the firm in February, 1882; William M. Price retired therefrom in November, 1882; and Leslie Marmaduke withdrew in November, 1883. Notwithstanding these changes in the personnel of the firm, business was transacted continuously in the name of Price, Marmaduke & Co., with the consent of the retiring partners, from the fall of 1881 until August 28, 1885, when S. G. Price, who was then conducting the business on his own account, failed and made an assignment. No pub. lic notice of any change in the firm was given until July I, 1884, when a notice was published for three successive days in two St. Louis daily papers, to the effect that on July 1, 1884, William M. Price, D. W. Marmaduke, and Leslie Marmaduke had sold out all their interest in the firm to Stephen G. Price, and that the latter would thenceforth continue the business. Circulars notifying customers of the dissolution of Price, Marmaduke & Co. were also sent out about July 1, 1884, but my conclusion is that plaintiff did not receive such noLice, if in point of fact any such notice was mailed to him. Plaintiff is a merchant residing and doing business at Minneapolis, in the state of Kansas. In July, 1881, he made a consignment of wool to the firm of William M. Price & Co., St. Louis, Missouri, with which firm defendants William M. and Stephen G. Price were then connected. Some time in June, 1882, plaintiff made a shipment of wool to Price, Marmaduke & Co., which in due course of time was sold by the consignee, and the proceeds duly accounted for. Prior to that shipment, however, and subsequently thereto, during the wool season of 1882, plain.tiff received price-currents from the firm of Price, Marmaduke & Co., which purported to be issued by that firm, and in the caption described the firm as composed of William M. and S. G. Price. late of the firm of William M. Price & Co:, and of Leslie Marmaduke, and D. W. Marmaduke. By means of the price-currents in question, plaintiff was advised, and at the date of the shipment in June, 1882, supposed, that all of the defendants were then members of the firm of Price, Marmaduke & Co., and he received no notice to the contrary in the course of that transaction. Dtiring the following wool seasons ofl883-84, and in June, 1885, plaintiff' als<:heceived price-currents issued by and in the name of Price, Marmaduke' & Co. iand was furthermore aware that certain parties shipments to, and had had trans-
actions with, the firm, although the plaintiff himself made no further consignments to the;firm after June, 1882, until June 5, 1885. After Leslie Marmaduke retired from the firm, in November, 1883, but not before, a change was made in the caption of the price-currents issued by Price, Marmaduke & Co. The change consisted in dropping from the caption the names of the individuals composing the firm as theretofore published, but in all other respects they were identical with those issued when the firm was first organized. On June 5, 1885, plaintiff being then ignorant of any of the changes that had taken place in the firm of Price, Marmaduke & Co. since its organization, made a second shipment of 5,355 pounds of wool to that firm. It was sold at auction on July 31, 1885, but the proceeds had not been remitted to the plaintiff at the time of the failure of S. G. Price . on August 28, 1885. The purpose of this suit is to charge all the defendants with the paynient of the claim. The defendants, William M. Price and Leslie Marmaduke, contend that they are not estopped from denying their liability as partners for the proceeds of the shipment made on June 5, 1885, because, as it is claimed, plaintiff did not know that they were members of the firm, at the date of the first transaction in 1882; that he never in point of fact knew that they were connected with the firm, and consequently did not make the second shipment in 1885, on the supposition that they still continued to be members, or on their credit. In other words, they claim that no act of theirs, or laches on their part, has misled the plaintiff, or induced him to extend credit to the firm of Price, Marmaduke & Co. for the debt sued for. The law is undoubtedly, as declared in the case of Thomp8on v. Bank, 111 U. S. 536,4 Sup. Ct. Rep. 689, that a person who was not a member of a partnership at the time a debt is contracted, cannot be held therefor, except for some act of commission or omission that will estop him from asserting as against the particular creditor that he was not a partner when the. debt sued for was contracted. But the contention on the part of the two defendants last named is based upon a false assumption of matter of fact. From the evidence produced on the trial of this case in the state court (when it was there pending) it may have been a fair deduction that plaintiff, when he began to deal with Price, Marmaduke & Co., did not know the names of the persons composing the firm, and never had known; but on the present trial it was shown to my entire satisfaction, -by the production of one of the price-currents that had been received by the plaintiff prior to June, 1882, that at the commencement of his dealings with Price, Marmaduke & Co. he m11st have known, and did know, or at least have supposed, that all the defendants were then members of the firm. While it was not shown on this trial that plaintiff had any special acquaintance with either member of the firm, or knew the financial standing of either, or trusted the firm because any particular person was a member of the same, yet I do not regard such proof as essential to a recovery. When it appears that a person knows who are the members of a firm, and has had dealings with it in the course of which he has extended credit, the presumption must be, in the
BLOCH V. PRIIJE.
absence of other proof, that he gave credit to all the persons who were known or represented to him to be partners. And, with respect to all subsequent transactions in which Credit is extended to the firm, the same presumption obtains so long as the firm name remains the same, and no notice has been given to the creditor of any change in the personnel of the firm. In the present case, therefore, the court will presume that, when plaintiff resumed dealings with Price, Marmaduke & Co. in June, 1885, he gave credit to all the persons who had been represented to him to be members of the firm in the course of the first business transaction, although he did not expressly testify that in the last transaction he gave special credit to either William M. Price or Leslie Marmaduke. It is further contended that plaintiff was not entitled to notice of changes in the firm of Price, Marmaduke & Co., because at the date of ! those changes he had only made the firm on shipment, and that not of a recent date. This is equivalent to saying that when William M. Price withdrew from the firm in November, 1882, and Leslie Marmaduke in N<YVember, 1883, the plaintiff occupied the position of a person who had never had any dealings with any member of the firm. This position the court regards as untenable. When a person has knowledge of the individuals who compose a mercantile firm, derived from business transactions with it, his right to notice of subsequent changes therein cannot be determined or measured bv the number of transactions he may have had with the firm, whether dne or many. The length of time that has elapsed since a person has had a transaction with a firm before any change occurs therein, may be a proper consideration affecting the question whether such person should be notified of the change. But, considering aU the circumstances of the present case, it cannot be said that plaintiff's dealings with the firm in question were so remote from the time changes took place in its membership that the outgoing members were under no obligation to notify him of their withdrawal. In point of fact one of the defendants withdrew within four months after plaintiff's first shipment to the firm, and before the next shipping season. Then, again, the outgoing members knew that the old firm name was to be employed in future transactions, which in itself would be likely to create the impression that no change had taken place in the member"hip; they were also well aware ofthe practice that had been pursued of sending out price-currents to merchants and shippers like the plaintiff, who had ever had dealings with the firm, thereby inviting further con13ignments; and probably understood, as was the fact, that the practice would most likely continue,. and that the plaintiff' might be thereby encouraged to make further consignments, and to extend further credit to the firm, within a comparatively short period after their retirement. In any of the case, plaintiff stood in the relation of a customer of the old firm and a probable patron of those who were to succeed to its h<lsiness, and in my judgment he was entitled to notice from the outgoing members of their withdrawal. As such notice was not brought home to the plaintiff, and as the evidence in my opinion warrants the conclusion that the last consignment was made on the credit of the old
firm, (plaintiff being ignorant of any change therein,) judgment will be entered against William M. Price, and against Leslie Marmaduke, as well as against the defendant Stephen G. Price. The amount of the judgment will be $810.96, with interest computed at the rate of 6 per cent. per annum from August 31, 1885, to the present date. The record will show that the case was submitted by these defendants, and also by the defendant D. W. Marmaduke at the same time, and judgment will go in favor of D.W. Marmaduke on his plea of former adjudication, and against the other defendants.
CENTRA.L TRUST Co. OF NEW YORK
WABASH, ST. L.& P. Ry. CO.
November 8, 1887.)
CONTRACT WITH .
(Oircuit Oourt, B. D. MZ88oJiri, B. D.
RAILROAD COMPANIES RoAD.
PRIORITY OF CLAIMS -
A railroad company promised the owner of a saw-mill near one of its sandswitches, which was not used for receiving freight, but only to get sand for track repairing, that it would take up lumber for him at that point in certain quantities. A month later the road notified the mill owner that it would refuse to receive any more lumber at the switch. The road subsequently passed into the hands of receivers. Held that, assuming the contract to be one that the company could not terminate at its pleasure, the claim for damages for its breach was not one entitling the mill owner to an allowance a.l\"ainst the property in the hands of the receiver, or out of the earnings of the road, in preference to the mortgage bondholders.
2.SAME-'-Lu.BILITY OF-BRIDGING STREAMS-DAMAGE TO LOGS.
The grant of power to a railroad company to bridge a navigable stream carries with it, as a necessary incident, the right to repair; and when the piling necessary to such repair IS driven in an ordinarily skillful manner, loss resulting therefrom to a person who uses the stream to raft logs is damnum absque injuria.
The defendant railroad company finished repairs to its bridge across a navstream in the winter of 1884 and 1885 after the ice had formed on the river. The piles used in the work were cut off at the surface of the ice, and when the ice sunk later with the falling river, the stumps were cut again, so that when the ice went out the tops of the piles were from 18 to 30 inches below the surface of the water. The plaintiff rafted logs from the opening of the season down to July, when the stream became so low that it would- not have been navigable even if the stumps had been removed. Held. that the piling had been properly removed, and that the company was not liable in damages for any loss which occurred while the river was susceptible of navigation.
At Law. On exceptions to master's on petition of N. F. Coffey, intervenor. Torrey« Giran, for intervenor Coffey. Geo. S. Grover and H. S. Priest, for receivers. THAYER, J., (oraUy.) The intervening petition of N. F. Coffey in the Wabash Case contains two causes of action. '1'he first count is an action in form contractu to recover damages for a breach of contract. The to recover damages on account of alleged second count is in form