Opinion of the Court.

conforms as near as may be in manner to that required for a first assess

ment.

APPEAL from the Superior Court of Chicago.

Messrs. SPAFFORD, MCDAID & WILSON, for the appellants.

Mr. M. F. TULEY, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was an application made at the March term, 1871, of the Superior Court, by the collector of Chicago, for judgment upon a special assessment warrant to make up what the city failed to collect of an original assessment for paving, etc., North Dearborn Street, in Chicago.

This case is distinguishable from that of Workman et al. v. City of Chicago and Union Building Association v. Same, 61 Ill. 463, 439. In both of those cases all of the steps in the original proceeding, including the ordinance, were illegal and void; in this case we discover no grounds for holding invalid the report of the commissioners and statement of estimate, or the ordinance ordering the improvement and specifying the amount of the total estimated expense to be assessed upon the real estate deemed specially benefited, and that chargeable upon the general fund. The assessment was held void for want of proper notice for confirmation. When the commissioners are acting within their jurisdiction in making their report and a statement of the estimated cost of the work, and the ordinance proper and valid-as in this case-we are not prepared to say that such report and ordinance may not be adopted in the new proceeding, by a proper reference, and such proceeding held to be made as nearly as may be in the manner prescribed for a first assessment.

But as the judgment must be reversed, on the ground that

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the collector had no authority to apply for it, we will forbear any discussion of the other points, because a different case may be presented at the hearing below as to the basis upon which this new assessment was made.

Judgment reversed and cause remanded.

Judgment reversed.*

SHERIDAN POOLE et al.

v.

A. D. FISHER et al.

1. PARTNERSHIP-as to third parties. Where a person holds himself out as a partner to a party giving credit to the supposed firm, and by his conduct or declarations induces such person to give credit in the honest belief that he is a partner, he will be held liable as a partner.

APPEAL from the the Superior Court of Cook County; the Hon. WILLIAM A. PORTER, Judge, presiding.

Messrs. BLANCHARD & MILLER, for the appellants.

Mr. JAMES L. STARK, for the appellees.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

This suit was brought against appellees, as partners, for goods sold and delivered.

*WALKER v. CITY OF CHICAGO.

Per CURIAM: This case is the same as that of Burton v. City of Chicago, and is disposed of in the same manner.

The judgment of the court below is reversed and the cause remanded.

Opinion of the Court.

They denied the partnership by proper pleas, verified by affidavit.

The judgment was rendered against Fisher for the debt, and in favor of Miller for costs.

The claim is not disputed; and the only question is, was Miller liable, as partner, for the debt incurred?

Fisher-a man without means or credit-commenced business in Chicago, and purchased goods of appellants, merchants in New York. The firm name was A. D. Fisher & Co.

The reporter of the mercantile agency in Chicago had an interview with Miller as to the parties who comprised the firm of Fisher & Co. Miller informed him that his father and himself were general partners of Fisher. Upon this information a report was sent to New York that the firm was responsible, so long as Miller & Son were connected with it.

Poole testified that Fisher said to him, when he purchased goods, that Miller was his partner, and the monied man of the firm; that afterward he saw Miller in the store in Chicago; was introduced to him as the partner of Fisher; conversed with him as partner; supposed him to be so; sold the goods under that belief; and met Miller at the Sherman House afterward; and he assured the witness that the claim would be paid.

McKean testified that both Fisher and Miller told him, that Miller was one of the firm; that he was introduced to Miller as the partner of Fisher; and the former admitted that he was a full partner.

Fisk testified that he first met Miller and Fisher in the fall of 1867; that Fisher spoke of Miller as his particular friend and partner; that Miller remarked that he took no active part in the business, but allowed Fisher to manage it; that afterward Miller spoke to him about a bill due by the firm, and said it must be paid.

Kelley, a clerk for the firm, testified he had a conversation with Miller, before the store was opened, and he said if the business proved successful, "we will go in on a large scale;" that he would be satisfied if the store paid his spending money; that

Opinion of the Court.

on one occasion Miller said to him, "do the best you can for us, and we will do well by you;" that he made inquiries about the business; and that he frequently heard Fisher introduce Miller as his partner, without any denial on the part of Miller.

This proof, if it does not show an actual partnership between the parties, is pretty conclusive that one existed as to third

persons.

The testimony in defense is very slight.

Fisher made a positive denial of the partnership, and of all his acts and language indicating this relation. He is, however, so flatly contradicted by so many persons, that we can not attach much weight to his evidence.

Miller denied the partnership in fact; but he does not negative the numerous acts and remarks proved which necessarily induced third parties to believe that he was a partner. His reply generally was, "I don't remember." This was manifest evasion; for it would be passing strange if he could not recollect the interviews with Poole, and McKean and Fisk.

The testimony of the father has no weight in the scale. He said that his son was not a partner. How could he know the exact relation between the parties? He said, however, that he loaned $10,000 to Fisher, and that his son and Fisher spoke to him about furnishing the money.

No reason is assigned for this generosity on the part of the father; no guide afforded to explain this exceeding interest on the part of the son.

We shall not inquire whether there was an actual partnership or not.

The acts and language of Miller most clearly induced appellants to give credit to the firm. The credit was given upon his responsibility. These creditors evidently believed him to be a partner, and acted upon such belief. The belief was honest, and fully justified by the conduct of Miller.

The law will therefore hold him liable, upon principles of general policy, and for the prevention of frauds upon creditors. The conduct, as well as representations, of Miller to one of

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appellants, are sufficient to charge him as partner. He held himself out as such, and can not escape the consequences. Story on Part. Sec. 64; Fisher v. Bowles, 20 Ill. 396; Niehoff v. Dudley, 40 Ill. 406.

The testimony is so overwhelming in favor of appellants, that we are constrained to reverse the judgment and remand the cause.

Judgment reversed.

SIDNEY T. WEBSTER

V.

CHARLES J. VOGEL et al.

1. RELEASE OF DAMAGES--not implied by new contract with another person. The defendant, by a verbal contract, chartered a vessel to plaintiff's for the season, guaranteeing that her boiler was in good condition, and delivered possession. On inspection the boiler was found to be in an unsound condition and needing extensive repairs. Defendant's agent directed plaintiff to make the necessary repairs, telling them it would be all right. After the repairs were made, involving a considerable expense and damage for wages paid employés who were idle during the repairing, the plaintiffs applied for a written charter-party, and were informed by defendant that he was not the owner of the vessel. While the repairs were being made defendant chartered the vessel for the season to a railroad company. The owner refused to charter her to plaintiffs, unless they would accept the charter which defendant had made to the railroad company and perform defendant's part of that agreement. The plaintiffs then took such charter, agreeing to perform defendant's contract with the railroad company, the owner agreeing to allow them one-half of the cost of the repairs: Held, that the new contract with the owner did not cancel the defendant's verbal undertaking and release him from liability for damages, except to the extent of the cost of repairs agreed to be paid by the owner.

2. CONTRACT-implied abrogation or release. It seems when a party has become liable by the violation or breach of a contract made by him in respect to the use of property of which he is not the owner, and the injured party then procures a similar contract from the rightful owner, and in it assumes some of the undertakings of the wrong-doer to still another party, that this will not, by implication, have the effect to dissolve the first contract and release the party making it from his liability for damages.