Heckheimer v. Allen

• Decision Date: 26 August 1911
• Citation: 71 S.E. 1033,89 S.C. 452
• Parties: HECKHEIMER v. ALLEN.
• Court: South Carolina Supreme Court

71 S.E. 1033

89 S.C. 452

HECKHEIMER v. ALLEN.

Supreme Court of South Carolina

August 26, 1911

Appeal from Common Pleas Circuit Court of Florence County; Ernest Gary, Judge.

Action by E. Heckheimer against James M. Allen. Judgment for plaintiff, and defendant appeals. Reversed.

J. W Ragsdale and R. E. Whiting, for appellant. Willcox & Willcox for respondent.

HYDRICK J.

The complaint alleges that the firm of James Allen & Son composed of James Allen and his son, James M. Allen, the defendant herein, became indebted to the plaintiff, and on December 7, 1896, gave him their two promissory notes, one for $350, due July 1, 1897, and the other for $546.51, due January 1, 1898, both bearing interest from November 10 1896, and containing a promise to pay all expenses of collection, including attorney's fees, if not paid at maturity, and prays judgment for the amount due thereon. The defendant denies liability, alleging that the notes were given after the dissolution of the firm of James Allen & Son, of which plaintiff had notice. There was testimony tending to show that the firm was dissolved in May, 1895, and that plaintiff had notice of the dissolution; that, prior to the dissolution, plaintiff held the firm's note for $1,500 which had been reduced by payments to the aggregate amount of the two notes sued on, which were given in renewal of that note, and that the new notes were first signed by James Allen alone; but plaintiff insisted that they should be signed in the firm's name, as the old note was, and that, in compliance with his request, James Allen signed them in the firm name, but told him, when he did so, that the firm had been dissolved, and that he had no authority to sign the firm name. The defendant also testified that the original debt was a private debt of his father, and that the old note was given before he was of age. Upon the evidence, the court directed a verdict for the plaintiff, holding that giving the new notes was not creating a liability of the firm, but merely giving evidence or an acknowledgment of its existence, which one of the former partners could do.

It has frequently been decided in this court that, after dissolution of a partnership, one of the partners cannot without special authority, bind his former partners by giving a new note, even for a partnership debt, if the party taking it had notice of the dissolution. Martin v. Walton, 1 McCord, 16; Bank v....