The defendant, David D.A. Wortendyke, never was a member of the firm of Wortendyke Brothers Co. This fact is conceded. The note on which this action was brought was made by the firm of Wortendyke Brothers Co., for a debt contracted by that firm. This is also conceded. It follows, that the plaintiffs cannot recover on the note against David D.A. Wortendyke, on the ground that he was in fact a member of the firm of Wortendyke Brothers Co., when the note was made, and was therefore bound by it. In other words, it follows from the conceded facts of the case that the plaintiffs cannot recover against the defendant, David D.A. Wortendyke, on the note, on the ground that the note was made by him and the other defendants who did compose the firm of Wortendyke Brothers Co.
But the plaintiffs insist that the defendant, David D.A. Wortendyke, is estopped from setting up, or saying, that he was not in fact a member of the firm of Wortendyke Brothers Co., when the note was made, or when the goods for which the note was given were sold to that firm. *Page 558
There is no evidence whatever in the case that the defendant, David D.A. Wortendyke, ever at any time represented himself to be a member of the firm of Wortendyke Brothers Co., or that he ever held himself out to the plaintiffs, by his acts or declarations, to be a member of that firm, otherwise than by omitting to notify the plaintiffs that he was not a member of that firm. The plaintiffs rely upon his omission or neglect to give this notice as estopping him from availing himself of the defence that he was not, in fact, a member of the firm of Wortendyke Brothers Co.
The conceded facts which present this question of estoppel are these: Previous to September 1, 1858, there was a firm of "Wortendyke Brothers," composed of the defendants, David D.A., Isaac, and John B. Wortendyke, who were brothers. On the 1st September, 1858, this firm was dissolved, and a new firm formed, composed of Isaac and John B. Wortendyke, and one Peter R. Hoffman, under the firm name of "Wortendyke Brothers Co." The plaintiffs had dealt with the old firm, and knew of the change in the partnership name, and that Peter R. Hoffman had become a member of the new firm previous to the making of the note on which the action was brought, and previous to the sale of the goods to the new firm for which the note was given.
The plaintiffs insist that notice of the change in the firm name, and of the fact that Hoffman had become a member of the new firm, was not notice to them of the fact that the defendant, David D.A. Wortendyke, had retired from the firm, and had ceased to be a member of it; that they had a right to believe, in the absence of such notice, that he continued to be and was a member of the new firm, and to trust the new firm on the ground that he was such member.
It can hardly be said, I think, that the notice or knowledge of the change in the firm name, and of the fact that Hoffman had become a member of the new firm, was notice to the plaintiffs that David D.A. Wortendyke was not a member of the new firm; but I think the question in the case is this: Under the circumstances, was it the duty of David D.A. Wortendyke *Page 559 to notify the plaintiffs that he had retired from the firm; or was the notice or knowledge which the plaintiffs had of the change in the firm name, and of the fact that Hoffman had become a member of the new firm, sufficient to put the plaintiffs upon the inquiry, and to have made it their duty to inquire, as to who composed the new firm, and whether David D.A. Wortendyke was or was not a member of the new firm?
I am not aware of any case in which it has been held that mere silence or omission to give notice, under such circumstances, operated as an estoppel. I do not see upon what principle it can be so held.
I think it was the duty of the plaintiffs, under the circumstances, to inquire whether David D.A. Wortendyke was or was not a member of the new firm, before they trusted the new firm on the ground that he was a member. Their knowledge of the change in the firm name alone was, I think, sufficient to have put them on this inquiry. This appears to have been held in the case of Kirby v. Hewitt (26 Barb., 607).
My conclusion is, that the order of the Supreme Court granting a new trial as to the respondent should be affirmed with costs.
SMITH, J., also dissented.
Judgment reversed, and judgment absolute for plaintiff.