Texter v. Wachs , 83 Pa. Super. 343 ( 1924 )

Argued April 23, 1924. This is an action of assumpsit to recover on a contract for the erection of a building. The trial resulted in a verdict for plaintiffs. Appellant's brief states the single question for review as follows: "May a suit be maintained in the name of a partnership where, after the award of the contract, there has been in fact a dissolution of the partnership and the contract carried on by one of the partners on his own responsibility?" Pursuant to Rule 50, we confine our consideration of the record to that point: Garvey v. Thompson, 268 Pa. 353, 355; Kasson v. Water Co., 81 Pa. Super. 11, 15. The refusal to give binding instructions for defendant is the basis of the assignments of error. Therefore, we take the testimony most favorable to appellees: McDonald v. Pittsburgh, 278 Pa. 485.

There was evidence that on December 28, 1906, plaintiffs, father and son, signed a written contract with defendant; that before the completion of the building, the son went to Panama and the work was completed under the supervision of the father, who testified that the partnership was not dissolved. The payments on the contract were made to H.S. Texter Son after the son had gone to Panama the same as before his leaving. During the son's absence, his name was used in the firm's business and he assumed active duties as a partner upon his return. The question whether the partnership continued to exist after the son went to Panama was submitted to the jury under proper instructions, although that question was not raised by the affidavit of defense. We all agree that the evidence fully warrants a finding by the jury that the partnership was not dissolved.

Judgment affirmed.