1903 May 5. BAGEL v. MILLER. l'artnership-Liability of Estate of Deceased Partner-Action for Goods sold and delivered—Goods ordered in Lifetime of Partner but delivered after his Death—" Debt or Obligation"—Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 9. The estate of a deceased partner is not liable in an action for the price of goods sold and delivered where the order for the goods is given in the lifetime of the deceased partner but delivery does not take place till after his death. APPEAL from a decision of the judge of the Wandsworth County Court. The action, which was to recover the price of goods sold and delivered, was originally brought in the High Court, but was remitted to the county court. The plaintiff, a boot manufacturer, had for some time had dealings with a firm of bootsellers trading as Pittam & Co., and consisting of two partners, H. E. Pittam and F. E. Miller; and in 1901, prior to the month of September, the plaintiff had sold and delivered to Pittam & Co. goods amounting to 321. 4s. On September 30, October 10, and October 15 of that year three separate orders for goods were given by Pittam & Co. to the plaintiff, amounting in the aggregate to 327. 15s.; no date for delivery was specified in the orders, and the goods were respectively delivered on October 25, November 5, and November 8. Meanwhile F. E. Miller, one of the partners, had died on October 18, after the three orders had been given, but before any of them had been executed; the fact of Miller's death was not communicated at the time to the plaintiff, who did not know of it until February, 1902. In 1902 Pittam left the country, and was said to have been last heard of in Demerara. On June 24, 1902, the writ was issued in the present action to recover 647. 19s. for goods sold and delivered, the defendants being Rosetta Miller, the executrix of the deceased partner, and Pittam. The action was remitted on July 21, but it was found impossible to serve the defendant Pittam, although the first hearing was adjourned in order that further efforts might be made to do so. The defendant Miller paid into court, with a denial of liability, the sum of 321. 4s. in respect of the goods ordered and delivered during the lifetime of her husband and testator, F. E. Miller, but contested her liability as executrix to pay for goods ordered by the firm before, but not delivered until after, his death. The learned county court judge held that the plaintiff could not recover from the executrix of Miller the price of the goods ordered by the firm in the lifetime of Miller, because the goods in question were delivered to the firm after Miller's death, and gave judgment for the defendant, Rosetta Miller. The plaintiff appealed. Abinger, for the plaintiff. The county court judge was wrong. The effect of s. 9 of the Partnership Act, 1890, is to preserve the right of a creditor of a partnership against the estate of a deceased partner where there is an existing obligation in the lifetime of the deceased partner, which is unsatisfied at the time of his death. (1) No doubt, as laid down in Lindley on Partnership, 6th ed., p. 621, the estate of the deceased is not liable to third parties for what may be done after his death by the surviving partners, but there was here an obligation existing in the lifetime of the deceased. The county court judge based his decision on Friend v. Young (2), but that case is distinguishable. In Friend v. Young (2) there was merely a contract of agency, which was determined by the partner's death; in the present case the order for goods gave rise in the lifetime of the deceased to an obligation on the part of the partnership to take the goods in pursuance of the contract and to pay for them, which obligation was not put an end to by the death. [LORD ALVERSTONE C.J. How can the obligation to pay for the goods on delivery be said to have existed at the death?] (1) By 53 & 54 Vict. c. 39 (The Partnership Act, 1890), s. 9: "Every partner in a firm is liable jointly with the other partners, and in Scotland severally also, for all debts and obligations of the firm incurred while he is a partner; and after his death his estate is also severally liable in a 1903 BAGEL v. MILLER. 1903 BAGEL v. MILLER. It arose by reason of the ordinary course of dealing between the parties, which was for the partnership to order goods of the plaintiff, which were manufactured by him and paid for at the ordinary time after delivery. In Northey Stone Co. v. Gidney (1) it was held that default in payment for goods sold and delivered was part of the cause of action, and this can only be so if payment was part of the original obligation arising under the contract. Timins, for the defendant. The case of goods ordered before, but delivered after, the death of a partner forms no exception to the general rule as to the liability of a deceased partner's estate. The obligation to pay for goods not yet delivered was not in existence in the lifetime of the deceased. To succeed in an action for goods sold and delivered, the plaintiff must prove delivery according to the contract—that is, to the partnership as it existed when the contract was made. In the present case this action could not have been maintained against the partnership at the date of the death, for there was no obligation at that time to pay for goods not yet delivered. Under such circumstances as the present there are in substance two contracts-one with the partnership as it existed before the death, the other with the partnership as it was after the death-and it is only the latter in which there can be any obligation to pay, for it is the only one in respect of which there has been delivery. [He cited Reuter & Co. v. Sala. (2)] LORD ALVERSTONE C.J. I am of opinion that the appeal of the defendant fails. The action is brought to recover 641. 19s., the price of goods sold and delivered, of which goods to the amount of 321. 4s. had been delivered before the death of Miller, but the remainder had not been delivered until after that date, although in fact ordered before it. No question arises in the case of a right to equitable relief, or of proceedings in equity against the estate of a co-partner on the ground of a right to obtain payment of a debt; nor is it a case where a Court is asked to exercise its equitable jurisdiction by an adjustment of (1) [1894] 1 Q. B. 99. (2) (1879) 4 C. P. D. 239. 1903 BAGEL V. MILLER C.J. accounts or by giving a creditor of a firm rights against the assets of one of the partners; it is simply a claim for the price of goods sold and delivered. In order to justify the plaintiff's claim, reliance is placed on s. 9 of the Partnership Act, 1890, Lord Alverstone which says that after the death of a partner his estate is severally liable for all debts and obligations of the firm incurred while he was a partner, so far as they remain unsatisfied. I agree that there may be an obligation, but not the obligation alleged in the present case. A claim for goods sold and delivered is not a debt incurred while the deceased was a partner, for there was no debt until delivery of the goods; nor was the duty to pay an obligation while the deceased was a partner, and the existence of some other obligation in the lifetime of the deceased is not sufficient to make his estate liable in respect of an obligation which was not incurred in his lifetime. The reasoning in the case of Friend v. Young (1) shews that where the debt does not accrue in the partner's lifetime it is right to hold that his estate is not liable for goods delivered to the partnership after his death. WILLS J. I am of the same opinion. CHANNELL J. I agree. The plaintiff's remedy is not by means of an action for goods sold and delivered. Appeal dismissed. Solicitors for plaintiff: Windsor & Co. Solicitors for defendant: Nicholson Patterson & Freeland. (1) [1897] 2 Ch. 421. W. J. B. 1903 May 8. MOURMAND AND OTHERS v. LE CLAIR. PROVINCIAL UNION BANK, CLAIMANTS. Bill of Sale-Form in Schedule, Deviation from-Repayment by Instalments— Omission of Monetary Denomination-Bills of Sale Act, 1878, Amendment Act, 1882 (45 & 46 Vict. c. 43), s. 9. A bill of sale to secure a loan of 70%. and interest at 1s. in the pound per month stipulated that the principal and interest should be repaid by monthly instalments of seven on a certain date in each month: the Held, that as, having regard to the amount of the monthly interest, bill of sale could only be paid off if the repayments were at the rate of 77. per month, the bill of sale was not rendered invalid by the omission of any unit of monetary denomination after the word "seven," and was not void as not being in accordance with the form in the schedule to the Bills of Sale Act, 1878, Amendment Act, 1882. APPEAL from the decision of the judge of the Greenwich County Court in interpleader proceedings. The plaintiffs having recovered judgment and issued execution against the defendant, the goods seized under the execution were claimed by the Provincial Union Bank as grantees under a bill of sale made by the execution debtor. The bill of sale, which was partly printed and partly in writing, witnessed that "in consideration of the sum of seventy pounds now paid to the grantor by the grantee, the receipt of which the grantor hereby acknowledges, he the grantor doth hereby assign unto the grantee and his assigns all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the payment of the sum of seventy pounds and interest thereon at the rate of one shilling in the pound per month. And the grantor doth further agree and declare that he will duly pay to the grantee the principal sum aforesaid together with the interest then due by monthly payments of seven " [sic] "on the twenty-fifth day of every month succeeding the date of these presents, the first payment to be made on the twenty-fifth day of September next." The county court judge held that it was impossible to |