Newmarch and Tealby against Clay and Wm. and Thos. Lumb
| Jurisdiction | England & Wales |
| Judgment Date | 18 June 1811 |
| Date | 18 June 1811 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 592
IN THE COURT OF KING'S BENCH
newmaech and tealby against clay and wm. and thos. lumb. Tuesday, June 18th, 1811. Where the plaintiffs had dealt for a long time with two partners, not knowing that they had a third partner during part of the time, and furnished them with goods, and received payments on account generally : and previous to the time when the secret tri-partnership was dissolved, goods had been furnished, to cover which bills had been paid to the plaintiffs by the two ostensible partners, which were dishonoured after the secret dissolution of the tri-partnership, and then other goods were furnished as before; yet as the dishonoured bills were afterwards delivered up by the plaintiffs upon the receipt of the subsequent good bills which latter were more than sufficient to cover the debts of the tri-partnership, though not to cover, in addition, the goods furnished after the dissolution of it: Held that such delivering up of the old dishonoured bills, upon receipt of the new good bills, was evidence of a particular appropriation of such new bills in payment and discharge of the old debt; of which the secret third partner might avail himself in an action on the case for goods sold and delivered, brought against him jointly with the other two partners. But as the other two partners had suffered judgment to go by default, the plaintiffs could not be nonsuited, but the third partner, who defended, was entitled to a verdict. This was an action upon the case for goods sold and delivered; to which Clay pleaded the general issue, and the other two defendants suffered judgment by default. 14 EAST, 240. NEWMARCH V. CLAY 593 [240] At the trial before Thomson, B. at York, it appeared that the plaintiffs were timber merchants at Hull, and dealt with the defendants, who were partners in trade at Leeds, in the manner after stated. That Clay by deed, dated the 14th of July 1805, entered into partnership for eight years with the two Lumbs; but the business-was ostensibly carried on in the names of William and Thomas Lumb, and Clay was not then known to be a partner; and it was not disputed that this secret partnership was dissolved by consent on the 1st of December 1808, after which the business continued to be carried on by the two Lumbs only. But a notice of the dissolution of the partnership, dated 13th September 1809, was read from the Gazette of the llth of November 1809. During the period mentioned in the following account, which was produced at the trial, the plaintiffs had no knowledge of Clay being a partner with the Lumbs. The goods were furnished at a credit of six months on bills. The account was thus exhibited : 'Drs. "Messrs. Wm, 1807. Nov. 25. 1808. March 4. May 28. Oct. 28. 1809. May 26. C241]- July 10. 24. Sept. 28. Oct. 30. Dec. 6. and Thos. Lumb, Leeds, in account with Newmarch and Tealby. 122 14 0 52 14 0 54 4 0 32 7 10 To goods at 6 months' credit, due 25th May ..... To goods at do., due 4th Sept. To goods at do., due 28th Nov. To goods at do., due 28th April 1809 52 12 66 4 125 10 101 17 66 3 122 14 To goods at do., due 26th Nov. To bill returned and charges To goods at do., due 24th Jan. To bill returned and charges. To goods at 3 months' credit, due 30th Jan. To goods at 6 months, due 6th June 1810 . 'Crs. 1808. May 20. Sept. 21. 1809...
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