Evening journal., 1898-02-22


delivered, or if delivered on any other
day, then this objection will not pre-
vail.
The plaintiff, however, insists that |
even II the said note Is void because Of |
such delivery on Sunday, that he may
still recover the amount represented by
the note with interest as claimed. un-
der his common count filed In this
cause for money loaned by the plain
tiff to the defendants
IF the money evidenced by the note
Of January 81, 1892, was loaned and de-
livered to Platt by Terry on Sunday
under a verbal contract then made, the
plaintiff cannot recover such amount
on this common count, because such
verbal contract would be void, and
could not be enforced.
IF the money was loaned on any
day other than Sunday, the defendant,
Elkinton, interpOses as a bar to recov-
cry In that case his plea OF the statute
OF limitations, and claims that no re-
covery can be had on the said common
count. because the last advance OF
money was the $l00 by check, June %,
1892, which was more than three years
before November rs, 1895, the date on
which suit was brought; and because
no acknowledgment has been made by
him which would take the claim out of
the statute. That inasmuch as the
partnership OF Platt e Elkinton was
dissolved October /. 1892, more than
three years before this action was in
stituted as aforesaid. that no aclsnowl-
edgement made by Platt, after the
dissolution OF the partnership, would
avail in removal of the bar of the stat
ute in respect to the defendant Ellrln-
/ ton
The court instruct you, that II You
are satisfied from the evidence that
more than three years elapsed between
| the actual delivery Of the money TO
Platt and the bringing OF this suit, that
no recovery can be had on the COM
mon count Ior money loaned. against
| Elkinton. unless E,kinton himself has
made some acknowledgment of the
debt within three years. which would
| take II out OF the statute. No admis-
sions, or payment Of interest, made by
| Platt alone after the dissolution oa
partnership, and after the bar of The
statute Of limitations had attached K
Upon the weight OF authority AZ
well as upon reason, we hold that thi
admission OF one partner, made aftel
the dissolution OF the partnership, anS
after the debt has been barred by tn
statute OF limitations should not blns
the other partners. This question 4
largely one ol first impression In thi
state upon this specific point There 1
in adjudgad cases. turning largely upo
the question as TO whether such ac
Acknowledgement revived the old debt o
created a new obligation; but the dc
cided weight OF authority, as we'll @
the trend OF recent cases, favors th
view that we have announced. 1t seem
also more consonant with reason, tins
!. the authority Of one partner to bin
: his co-partners. which authority grow
out or the formation and existence (
the partnership, should cease upon tn
determination OF the partnership.
!, any event that such authority ehoul
= not be extended SO as to permit on
partner, after the dissolution OF the c.
q partnership, to revive against his @
q partners a stale claim and one barre
. by the act OF limitation, by any admi
y sions made after the dissolution.
"This view Of the law is approved
Y some extent by the Court Of Erro
: and Appeals OF this state, in the case
Rice VS.. Pennypacker ct al, IIoui
279; where the court held that The a
acknowledgement by a former partne
Q that claims were subsisting and unpai
, was insufficient TO revive them again
the representatives Of his deceas'
= partners.
"Inasmuch as the contention in th
9 case with respect to partnership, ,
y the one hand is that the firms OF Pla
& Elkinton. and Buford Mills, Pla
& Elkinton, were actually one firm
9 and on the other hand they constitute
4 two separate and independent firms,
is unnecessary for us 10 define VIII
a constitutes a co-partnership. The ia
Vi OF the existence Of the partnership
e one mode or the other not being q ma
"a ter OF dispute.
- Governing yourself by the law
e the court has just laid it down, it
a. for you to determine from the eviden
Il what, II any, amount is due the plai
d tin In this action"