Bush & Hattaway v. W.A. McCarty Co.
| Citation | 56 S.E. 430,127 Ga. 308 |
| Parties | BUSH & HATTAWAY v. W. A. McCARTY CO. |
| Decision Date | 16 January 1907 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world.
The word "creditors," as thus employed in the statute (Civ. Code 1895, § 2634), is not limited to persons who were creditors at the time of the dissolution. A person who had previously sold goods and given credit to the firm during its continuance was within its meaning.
Actual notice must be given to creditors.
As to the notice which must be given to the world, no inflexible rule can be laid down. Fair and reasonable publication in a public gazette circulated in the locality in which the business of the partnership has been conducted is generally sufficient, and any means of fairly publishing the fact of such dissolution as widely as possible, in order to put the public on its guard, are proper to be considered on the question of such notice.
General reputation of the dissolution in a community where a person sought to be charged with notice resides, or in the business community to which the parties belong, is admissible as tending to show notice. Such general reputation or notoriety is not itself notice, but is admissible for the consideration of the jury in determining whether there was notice.
A witness cannot state his mere conclusion that others than himself know a fact.
The evidence offered with the view of showing notice to the plaintiff in this case was not sufficient for that purpose and was properly excluded. Some of it failed to measure up to the requirements of admissibility under the rules stated in the preceding notes, and some was secondary in character.
Parol evidence of a letter written by one person to another and what was printed on the stationery used was properly excluded, in the absence of any foundation being laid therefor.
Error from City Court of Wrightsville; Wm. Faircloth, Judge.
Action by the W. A. McCarty Company against Bush & Hattaway. Judgment for plaintiff, and defendant brings error. Affirmed.
B. B Blount and E. L. Stephens, for plaintiff in error.
J. L Kent, for defendant in error.
LUMPKIN J. (after stating the above facts).
Civ. Code 1895, § 2634, declares that "the dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world." It is not in terms stated what character of notice must be given, or who fall within the designation of "creditors," and who within that of "the world." This section is a codification of the general law, and not of a legislative enactment, and in construing it decisions of other courts as well as our own may be looked to. There is a difference between the kind of notice required to be given to creditors and to the world. To the former actual notice must be given. Ennis v. Williams, 30 Ga. 691; Ewing v. Trippe, 73 Ga. 777. Askew v. Silman, 95 Ga. 681, 22 S.E. 573. Lovejoy v. Spafford, 93 U.S. 430, 23 L.Ed. 851. The difference between the notice required to be given to creditors and that which must be given to the world at large being thus established, the next inquiry is, who fall within the class designated as "creditors," as contradistinguished from "the world"? It is of course clear that one to whom the firm is indebted at the time of dissolution is a creditor. Camp v. Southern Banking & Trust Co., 97 Ga. 582, 25 S.E. 362. But the word "creditors," as used in the section of the Code, is not confined to this narrow meaning. In order to reach a proper construction of the rule requiring notice of the dissolution of a firm to be given so as to relieve a retiring ostensible partner, the reason of the rule may be considered. The reason generally assigned in the text-books and reports is that persons who have dealt with the firm, as by selling to them or crediting them, are presumed to know who composed such firm, and to rely upon the credit of each and all of them, and that, having ascertained the existence of the partnership, and having trusted it, they may act upon this knowledge until they have been informed that the partnership no longer exists, while those who have never dealt with the firm are not presumed to know who compose it, and are not entitled to the same notice as the former class. See Prentiss v. Sinclair, 5 Vt. 149, 26 Am.Dec. 288, 290, and note. Where our Code employs the word "creditors," text-writers and courts very often use the expression "former dealers," or "former customers," or "former creditors." But an examination of the cases will show the same underlying principle in them. 2 Bates on Partnership, § 613; Parsons on Partnership (4th Ed.) § 319. Therefore it has been held that one whose only dealing with a firm has been as a purchaser of its goods, and who has never sold to or been a creditor of the partnership, is not such a former customer as falls within the rule. Askew v. Silman, 95 Ga. 678, 22 S.E. 573. Without undertaking to give an exhaustive definition of the word "creditors," as used in the case, one who has formerly sold goods to the firm and extended credit to it would fall within the designation, although at the time of the dissolution no indebtedness existed.
What then will suffice as actual notice? In Austin v Holland, 69 N.Y. 571, 575, 25 Am.Rep. 246, it is said: ...
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