Cooke v. Faucett
| Decision Date | 12 March 1926 |
| Docket Number | 16690. |
| Citation | 132 S.E. 268,35 Ga.App. 209 |
| Parties | COOKE v. FAUCETT et al. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
The existence of a copartnership, when once established, is presumed as to third persons to continue until notice of dissolution has been given.
Where holder of note sued partnership as maker thereof, plea of no partnership was demurrable, where it failed to allege that notice of dissolution was given, or that payee and holder had actual knowledge of dissolution (Civ. Code 1910,§§ 3166, 3172).
One of defenses maintainable against suit of bona fide holder on negotiable instruments is plea of non est factum.
If a partnership has implied power to execute notes, one to whom they are offered in the market may presume they were issued under circumstances which gave requisite authority.
In suit on note of partnership, as against rights of plaintiff, plea of non est factum, filed either by partnership or a partner amounted to denial of fact of partnership's execution of the note, in absence of allegation that original payee and holder were charged with notice of limitations in authority.
Where holder of note sued alleged partnership as maker and a named indorser, plea of non est factum, filed by one of alleged partners, setting up he had nothing to do with execution of note, was demurrable for failure to deny fact of execution of note in partnership name by the other member, or failure to allege that plaintiff took with notice of executing member's lack of authority and of his private dealing (Civ. Code 1910, § 4286).
Where court erred in overruling demurrers to pleas all that transpired thereafter was nugatory, and hence it was error to grant nonsuit.
Error from City Court of Thomasville; H. J. MacIntyre, Judge.
Suit by A. H. S. Cooke against W. H. Faucett and others. Judgment for defendants, and plaintiff brings error. Reversed.
Eva Luke Hay, of Thomasville, for plaintiff in error.
Titus & Dekle, of Thomasville, for defendants in error.
Syllabus OPINION.
1. "The existence of a copartnership, when once established, is presumed as to third persons to continue until notice of dissolution has been given that the copartnership no longer exists." Brady v. Phillips Mule Co., 27 Ga.App. 444 (3), 108 S.E. 809, and cases there cited. Accordingly, where the holder of a promissory note brought suit thereon against an alleged partnership, as maker, and a named indorser, and a plea of no partnership was filed by one of the alleged partners, in which it was set up that at the time of the execution of the note by the alleged partnership there was in fact no such partnership, for the reason that the partnership had a short time before been dissolved, the plea was demurrable because of its failure to allege that notice of such dissolution had been given as required by law, or that both the original payee and the present holder of the note, at the time of the accrual of their respective rights in it, had actual knowledge of such dissolution, and the court erred in overruling such demurrer to the plea of no partnership. See Richards v Butler, 65 Ga. 593 (2); Ewing v. Trippe, 73 Ga 776; Askew v. Silman, 95 Ga. 678 (1), 22 S.E. 573; Pyron v. Ruohs, 120 Ga. 1060 (4), 48 S.E. 434; Burch v. Americus Grocery Co., 125 Ga. 153, 53 S.E. 1008; Merchants' & Farmers' Bank v. Johnston, 130 Ga. 661 (2), 61 S.E. 543, 17 L.R.A. (N. S.) 969, 14 Ann.Cas. 546; Bank of Covington v. Cannon, 133 Ga. 779, 67 S.E. 83; Parker v. Southern Ruralist Co., 15 Ga.App. 334, 83 S.E. 158; Skeffington v. Daniel, 18 Ga.App. 262 (2), 89 S.E. 458; Civil Code 1910, §§...
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