In legal effect it is a partnership by estop pel which exists only where the parties have not agreed to be, and are not in fact, part ners but are held as such only because they have so represented themselves, and some third person has relied upon the representa tions; Deputy v. Harris, 1 Marv. (Del.) 100, 40 Atl. 714; Uhl v. Harvey, 78 Ind. 26; Light hiser v. Allison, 100 Md. 103, 59 Atl. 182.
The term "holding one's self out as part ner" imports, at least, the voluntary act of the party holding himself out; Morgan v. Farrel, 58 Conn. 413, 20 Atl. 614, 18 Am. St. Rep. 282; 2 Camp. 617; but no particu lar mode of holding himself out is requisite to charge a party. It occurs most frequently where a partner retires from a firm and his retirement is not made known. It may be express and either by direct assertion or by authority to a partner to use the party's name. It may result from negligence, as a failure to forbid the use of one's name by the firm; Poillon v. Secor, 61 N. Y. 456; Drennen v. House, 41 Pa. 30; Dailey v. Coons, 64 Ind. 545; Barnett Line of Steam ers v. Blackmar, 53 Ga. 98. It must appear that the "holding out" was done by him or by his consent ; Seabury v. Bolles, 51 N. J. L. 103, 16 Atl. 54, 11 L. R. A. 136; Munton v. Rutherford, 121 Mich. 418, 80 N. W. 112; Rittenhouse v. Leigh, 57 Miss. 697; 8 L. J. C. P. 257.
Holding out is a question of fact ; Stephen son v. Cornell, 10 Ind. 475; Nelson Distilling Co. v. Loe, 47 Mo. App. 31; Fletcher v. Pul len, 70 Md. 205, 16 Atl. 887, 14 Am. St. Rep. 355. The usual evidence to charge a party in such cases is that he has suffered the use of his name over the shop-door, etc., or that he has done other acts, or suffered his agents to do acts; Wright v. Boynton, 3-7 N. H. 9, 72 Am. Dec. 319; no matter of what kind, sufficient to induce others to believe him to be a partner; Buckingham v. Burgess, 3 McLean 364, Fed. Cas. No. 2,087; id., 3 Mc Lean 549, Fed. Cas. No. 2,089 ; 3 Camp. 310, per Tindal, C. J.; State v. Wiggin, 20 N. H. 453; Holmes v. Porter, 39 Me. 157; Car michael v. Greer, 55 Ga. 116: Bartlett v. Raymond, 139 Mass. 275, 30 N. E. 91; Mc Clellan Dry-Dock Co. v. Steamboat Line, 43 tia. Ann. 258, 9 South. 630. A person is not relieved from liability though he was induc ed by the fraud of others to hold himself out as a partner with them. See 5 Bingh. 521;
1 Rose 69. The holding out must have been before the contract with the third person was entered into, and must have been the inducement to it; 7 B. & C. 409 ; Wright V. Powell, 8 Ala. 560 ; Hefner v. Palmer, 67 Ill. 161; Palmer v. Pinkham, 37 Me. 252; Howes v. Fisk, 67 N. H. 289, 30 Atl. 351. A third party will be held liable as a partner only to one who knew of the holding out at the time he acted and who acted in reliance up on it; 1 B. & Ald. 11; Thompson v. Bank, 111 U. S. 529, 4 Sup. Ct. 689, 28 L. Ed. 507 ; Marble v. Lypes, 82 Ala. 322, 2 South. 701; Partridge v. Kingman, 130 Mass. 476; Bur nett v. Snyder, 81 N. Y. 550, 37 Am. Rep. 527; Adrian Knitting Co. v. R. Co., 145 Mich. 323, 108 N. W. 706; Spaulding v. Nathan, 21 Ind. App. 122, 51 N. E. 742 ; Daniel v. Schultz, 12 Ky. L. Rep. (37; and so is "the great weight of authority"; Gilmore, Partn. 66 ; though on the strength of a rule laid down in Parsons, Partn. (3d Ed.) 130, there is at least one case contra, Poillon v. Secor, 61 N. Y. 456, which may be considered as overruled by subsequent cases ; Central City Say. Bk. v. Walker, 66 N. Y. 424; Cassidy v. Hall, 97 N. Y. 159 ; Rogers v. Murray, 110 N. Y. 658, 18 N. E. 261; and it was said that the cases of Poillon v. Secor, 61 N. Y. 456 and 2 H. Bla. 242, cannot be considered as good law ; Pars. Partn. Beale's ed. § 93. If the plaintiff knew at the time he made the contract that the party he seeks to charge was not a partner, he cannot hold him as such ; Rector, 50 Fed. 684, 1 C. C. A. 611; or if the plaintiff had notice of any kind; Alabama Fertilizer Co. v. Reynolds, 85 Ala. 19, 4 South. 639 ; 1. Camp. 404 ; and a representation made after the contract was entered into will not charge the defendant ; 1 C. M. & R. 415. The doctrine is based up on estoppel. But it has been held that even where there was no evidence that the plain tiff was misled, the reputed partner will be held liable ; Rizer v. James, 26 Kan. 221.
Where the new firm had the same name as the old, one who sold goods to the former may recover of the members of the old firm, though notice of dissolution was published in a newspaper, and though the old firm owed him nothing at the dissolution, and though he did not know the names of the members of the old firm ; Elkinton v. Booth, 143 Mass. 479, 10 N. E. 460.