Julius C. Wolf Co. v. Fitzpatrick & Co.

Application for Rehearing. His Honor, CHARLES F. CLAIBORNE, rendered the opinion and decree of the Court, as follows: The petition for rehearing and the brief in support thereof have not satisfied us that our opinion and decree herein were erroneous. A further consideration of the matter suggests to us . another reason why the judgment should remain unchanged. “Julius C. Wolff & Co.” was dissolved and was succeeded by “Julius C. Wolf Co.,” a new member was added to form a distinct and separate company. Rehearing refused, March 29, 1915. Writ denied, May 17, 1915. The defendant is the debtor of the latter company and the creditor .of the former company. He cannot compensate his ■ claim against the former company by the claim of the latter company against him, because there is no written evidence that the latter company has assumed to pay his debt. In the case of Abat & Generes vs. Penny, 19 A., 289 (290) the Court said: . ‘ ‘ The evidence shows that one, A. Testrou, became a partner, and made the company; from that moment the old firm was changed and became a new one, with different parties, interest and liabilities; the creditors and debtors of the old firm, were not so of the new firm, and vice versa. It was two different houses in contemplation of law; creditors of the old firm could not have pleaded compensation against a debt due the new firm. “It is a well established principle of our jurisprudence that the addition of a new member to a commercial partnership creates a new firm with distinct rights and liabilities, and that the latter is not responsible for debts of the former partnership, unless it has made itself so. Verbal evidence is not admissible to prove that the new partnership has promised to pay a debt of the former, which is clearly a third party.” 32 A., 382 . Rehearing refused. St. Paul, J., — I concur in the decree.