Secor v. Sturgis, 16 N. Y., 548. tion as it is broken, before the time for the performance of the 23. others, the ground of action is the stipulation which is in the nature of a several contract. Where there is an account for goods sold, or labor performed, where money has been lent to or paid for the use of a party at different times, or several items of claim spring in any way from contract, whether one only or separate rights of action exist, will, in each case, depend upon whether the case is covered by one or by separate contracts. The several items may have their origin in one contract, as on an agreement to sell and deliver goods, or perform work, or advance money; and usually, in the case of a running account, it may be fairly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both of the parties. But there must be either an express contract, or the circumstances must be such as to raise an implied contract, embracing all the items, to make them, where they arise at different times, a single or entire demand or cause of action. 24 Applying this test to the present case, it is very clear that the two accounts did not constitute an entire claim, but, on the con- 25 trary, that they were several and formed two several causes of action. The business of the plaintiffs consisted of two branches, which were designed to be and were kept entirely distinct, in each of which one of the accounts was made, and an arrangement was entered into under which one of the accounts arose anterior to the opening of the other account. Here was no express contract connecting the two accounts; and the facts, instead of warranting the presumption of such a contract, show that separate agreements only, one in regard to each account, were intended. [A ruling on another point is omitted.] All the judges concurred. Judgment affirmed. 26. Sharp v. Hutchinson, 100 N. Y., 533. SHARP v. HUTCHINSON. New York Court of Appeals, 1885. [Reported in 100 N. Y., 533; aff'g 49 Super. Ct., 50.] 1. In an action against one who has become liable as a general partner by reason of a failure to comply with the statute of limited partnerships, it is sufficient for the complaint to allege the defendants to have been partners without mentioning their attempt to form a limited partnership. 2. The cause of action against him is not based upon the statute, but upon his common law liability as a general partner. Plaintiff, by Robertsons, Harmon and Cuppia, his attorneys herein, complains of the defendants above named and alleges: I. That at the times hereinafter mentioned, the defendants were copartners in trade, carrying on business in the city of New York, under the firm name and style of Hogg & Patterson. II. That as such copartners, the defendants, at the city of 3 New York, between the 7th day of December, 1880, and the 9th day of March, 1881, purchased and received of plaintiff certain goods, wares and merchandise, consisting of gas stoves and gas heating burners, at the agreed price, and of the just and reasonable value of $97.25, which said sum defendants promised and agreed to pay to plaintiff therefor. III. That no part of said sum has been paid except the sum of $25.00, which defendants paid generally, on account thereof, on the 6th day of May, 1881. Sharp v. Hutchinson, 100 N. Y., 533. Wherefore, plaintiff demands judgment against the defendants 4 for the sum of seventy-two dollars and twenty-five cents, with interest thereon from the 9th day of March, 1881, besides costs. Robertsons, Harmon & Cuppia, Pltffs. Att'ys. The answer (omitting title) was as follows: The defendant, David J. Hutchinson, separately answers the complaint in this action by George H. Forster, his attorney herein, upon information and belief, as follows: First. He denies each and every allegation contained in said 5 complaint, except such as are hereinafter expressly admitted to be true. Second. He alleges that heretofore a limited partnership was formed pursuant to the laws of the State of New York, under the firm name of Hogg & Patterson, in which the general partners were Andrew H. Hogg and Alexander H. Patterson, and that said partnership was to commence on the 29th day of April, 1880, and to terminate on the 29th day of April, 1883, and that this defendant was a special partner therein, and was 6 not otherwise interested in or related to said partnership or its business, and that said limited partnership continued at the several times mentioned in the complaint. WHEREFORE, he demands judgment, that the complaint as to him be dismissed, with costs. GEO. H. FORSTER, At the trial the plaintiff proved the sale of the goods to the firm. He also gave in evidence the papers by which, in the 7 organization of the firm, it had been attempted to create a special or limited partnership under the statute; (1 R. S., 765 [8th ed., 2493, vol. 4], sec. 8); and offered testimony to show that no actual cash payment of capital had been made by the proposed special partner, as required by the statute in order to constitute a limited partnership. The evidence was excluded on the ground that the pleadings laid no foundation for it. 8 9 Sharp v. Hutchinson, 100 N. Y., 533. The Superior Court at General Term held that, as the answer set up a limited partnership, it was error so to hold; and reversed the judgment dismissing the complaint. SEDGWICK, Ch. J., delivering the opinion of the court, said, in part: "If in this action the defendant had not in the answer set up the existence of the limited partnership, it might have, perhaps, been necessary to determine whether an allegation of general partnership is supported by proof that the certificate or affidavit filed under the statute to form a limited partnership was false. "One question would be, does negativing the assertions of the certificate or affidavit tend to show that such facts as are essential to copartnership had an existence? Or does it tend only to show the liability as a partner under the statute? "Another question would be, if it tend to show only the latter must not the special facts, which under the statute create the liability, be pleaded? But when the defendant, to a complaint of general partnership, avers the making of the limited partnership, the ground of the exclusion of the questions on the trial in 10 this case cannot, in my judgment, be sustained. The ground was that to show the falsity of the certificate or affidavit was not relevant to any issue in the case, as the complaint did not state a cause of action based upon the falsity. There was, however, an issue arising from the answer to which the questions were relevant, and which required their admission, unless they had been excluded on an objection which was not taken, and which perhaps would not be held to be sound, that is, that the testimony should not be called for until the defendant had given his case. "Section 522 of the Code of Civil Procedure declares that allegation of new matter in an answer is to be deemed controverted by the adverse party." 11 FREEDMAN, J., concurred. * * * The Court of Appeals affirmed the judgment of the General Term. EARL, J. In April, 1880, the defendants attempted to form a limited copartnership for the purpose of carrying on business in the city of New York, under the firm name of Hogg & Patter Sharp v. Hutchinson, 100 N. Y., 533. son, the defendant Hutchinson being the special partner. There- 12 after the plaintiff sold the firm certain goods, and this action was brought against all the members of the firm to recover the price of such goods. The defendant Hutchinson alone defended. setting up as his answer the formation of the limited copartnership, and claiming exemption from liability under the statute as a special partner. 13 The plaintiff in his complaint alleged a cause of action against the defendants as copartners, making no mention of the attempt to form a limited copartnership; and upon the trial he proved the sale of the goods to the firm, and then introduced in evidence the certificate and papers filed for the formation of the limited copartnership, from which it appeared that Hutchinson contributed to the capital of the firm $10,000; and then he offered to prove that he in fact contributed only $8,000. Upon the objection of Hutchinson's counsel this proof was rejected on the sole ground that it was not within the issue. The view of the trial judge was that the complaint, instead of treating Hutchinson as a mere general partner, should have been based upon the statute alleging the special defects in the formation of the 14 limited copartnership. In this there was error. If the proof had been received it would have shown that Hutchinson never in fact became a special partner, but that he was from the beginning a general partner, and liable as such. (2 R. S., chap. 4. tit. 1, § 8.) The cause of action against him was not based upon the statute, but upon his common law liability as a general partner, and hence it was proper, in setting forth in the complaint the facts constituting plaintiff's cause of action, to charge him as a general partner, and then upon the trial to show that he was such by any competent proof. The General Term was, therefore, right in reversing the judgment of the Special Term, and its order should be affirmed, and judgment absolute ordered for the plaintiff with costs. All the judges concurred. Order affirmed, and judgment accordingly. 15 |