Smith v. Ervin

Citations

• 168 Pa. 271
• 31 A. 1067
• 1895 Pa. LEXIS 789

Syllabus

<p>Partnership — Special partnership — Notice—Dissolution.</p> <p>Where a special partner in a limited partnership formed under the act of March 21, 1886, P. L. 143, gives the notice required by the partnership articles of his intention to withdraw his capital from the firm at a certain time, but afterwards consents to withdraw it gradually, and the firm is not dissolved, he is entitled to participate in profits earned up to the actual dissolution of the partnership following a notice given by one of the o,ther partners.</p> <p>Smith was a special partner with Ervin and Toland. The partnership articles provided that one partner might dissolve by giving three months’ notice to the others before the expiration of any calendar year. In October, 1890, Smith gave three months’ notice of his intention to withdraw from the firm. Subsequently he agreed to take out $10,000, and to withdraw the rest of his capital gradually. On Jan. 9, 1891, he received $10,000, and signed the following receipt. “Received from Ervin & Tol- and ten thousand dollars on account of my capital, the balance of my interest to be settled as soon as possible, when certain accounts that show a shrinkage are closed out, I agreeing to pro-rate equally with Spencer Ervin and Edward D. Toland, my partners, if any loss is sustained in so closing these outstanding accounts.” Smith claimed that, notwithstanding the receipt, the partnership still continued. On Sept. 26, 1891, Toland notified Smith in writing that he intended to withdraw from the firm on Jan. 1, 1892. When Toland was on the witness stand he testified as to the notice given by Smith in 1890. He was then asked this question : Q. “But you continued it for another year by agreement of all the parties? A. Yes, with the understanding with Mr. Smith that his capital should be liquidated as fast as possible, commencing with $10,000, January 9th.” Held, that the evidence was sufficient to sustain Smith’s claim that the partnership continued until Jan. 1