Dickerson v. Turner
| Decision Date | 27 May 1859 |
| Citation | 12 Ind. 195 |
| Parties | Dickerson and Others v. Turner and Another |
| Court | Indiana Supreme Court |
From the Warrick Circuit Court.
The judgment is affirmed with 3 per cent. damages and costs.
C Baker, for appellants.
Mr Baker, for the appellants, argued as follows:
The judgment is not sustained by the evidence for two reasons to-wit:
1. There was no attempt made to prove notice to the defendants or to either of them, of the protest of the bill.
2. There was no evidence of a want of effects in the hands of the drawee. It is alleged in the complaint and appears from the evidence, that the firm of Dickerson, Bethell & Co. was composed of Charles Dickerson, Hendricks Dickerson Chester Bethell and Frank Bethell, and that Hendricks Dickerson died in September, 1855, long prior to the commencement of this action, and by his death the firm was dissolved.
As there was no attempt made to prove notice to the defendants, of the dishonor of the bill, there could be no recovery under the first paragraph of the complaint. Let us inquire whether there was any evidence to justify a recovery against all or any of the defendants under the second paragraph of the complaint, and in prosecuting this inquiry we will endeavor to establish three propositions, to-wit:
1. That there is no evidence of a want of effects in the hands of the drawee of the bill, sufficient to justify a judgment against any of the defendants.
2. That if the above proposition is not established to the satisfaction of the Court, still the evidence did not justify a verdict against the defendants, Chester Bethell and Frank Bethell, because there is not a particle of evidence tending to show that the drawers of the bill had no efiects in the hands of the drawee, except the declarations of Charles Dickerson, and these were not binding on the other defendants, because they were made, as the record shows, long after the dissolution of the firm of Dickerson, Bethell & Co., by the death of Hendricks Dickerson, as before stated.
3. The order requiring Chester Bethell's property to be exhausted before the property of the other defendants should be levied upon, on the ground that he was the principal debtor, was made without any evidence except the admissions or declarations of Charles Dickerson.
We insist then, in the first place, that there was no evidence of a want of effects of the drawers in the hands of the drawee, sufficient to warrant a judgment against either of the defendants. To excuse the want of notice of the dishonor of the bill, it was necessary for the plaintiffs to show an entire want of effects in the hands of the drawee, continually, from the time of the drawing of the bill until the time it fell due, and this under such circumstances as to establish that the drawers had no right to expect that the drawee or any other person would pay the bill. Chit. on Bills, 345. It is a presumption of law that the drawers have been damaged by want of notice, and almost the only allowed proof of the negative in such a total want of effects as is above stated. Id. 435. Whenever, says the same author (p. 438), a party to a bill is entitled to his remedy over against another party, either on the bill or otherwise, as he may be prejudiced by the delay in giving him notice of the dishonor, he is entitled to due notice thereof. Applying these principles to the evidence in this case, let us inquire whether the testimony even tends to show such a want of effects. The only evidence introduced by the plaintiff was--
1. The bill and its indorsement and a memorandum of a credit on the back of it. 2. The protest of the bill. 3. The testimony of Andrew L. Robinson, Esq., one of the plaintiffs' attorneys, as to certain admissions or declarations made to him by Charles Dickerson, one of the defendants, immediately before the trial.
The bill, on its face, waived acceptance, and this is relied on as a circumstance to prove a want of effects. The waiver of acceptance amounts to nothing, as without this waiver it was not incumbent on the holder to present the bill for acceptance, it being payable at a fixed time (eleven months) after date. Chit. on Bills, 272. But if this waiver did tend to prove a want of effects at any time, it was only at the time of the drawing of the bill; it did not surely tend to prove that the drawee was not placed in funds to meet the bill during the eleven months between its date and its maturity.
The waiver of acceptance, then, does not prove a want of effects in the hands of the drawee. The protest does not, of course, show a want of effects such as would justify an omission of notice, for if it did, there would be no necessity of proving notice of protest in any case, as the protest would establish a want of effects, and this want of effects would excuse the omission to give notice of the dishonor. It will not be pretended that the bill and its indorsements show a want of effects, and this brings us to the only other evidence in the case, viz., Major Robinson's testimony as to the admission of Charles Dickerson, one of the defendants. Now, on the supposition that these admissions were binding on the other defendants, we insist that they do not show such a want of effects as would justify an omission to notify the drawers of the bill of its dishonor. These admissions only show that the bill was drawn by Dickerson, Bethell & Co., for the accommodation of the firm of Shelby and Bethell, to pay a debt, which the last-named firm owed the plaintiffs, and that Chester Bethell, the payee and indorser of the bill, was a member of both firms, and indorsed the bill to the plaintiffs, one of the plaintiffs being the drawee. Now these very admissions show that the bill was drawn for the accommodation of Shelby and Bethell, and that the drawers had a right to expect that they, Shelby and Bethell. would provide for it, and as it was given for the debt of Shelby and Bethell, the drawers would have their remedy over against that firm, and were, therefore, entitled to notice. The plaintiffs appear to give considerable weight to the circumstance that the bill was drawn on James Turner, taken in connection with Dickerson's admission that it was given to pay a debt due to himself and his partner Wilson; but how this could negative the idea that the drawee was placed in funds to meet the bill during the eleven months that intervened between its date and maturity, I am at a loss to conjecture. I think then I am warranted in saying that the evidence not only does not prove, but does not tend to prove such a want of effects as would excuse the want of notice.
But if I am mistaken in this, still the judgment against Chester Bethell and Frank Bethell is erroneous, because the admissions of Charles Dickerson, upon which it was based, were made after the dissolution of the firm of Dickerson, Bethell & Co., and were, therefore, not binding on the other defendants. It is a well settled principle of law, that after the dissolution of a partnership, one partner cannot, by declarations or acknowledgments bind his co-partners, but that his power to bind, either by his acts or his declarations wholly ceases with the dissolution. Yandes v. Lefavour, 2 Blackf. 371.--Kirk v. Hiatt, 2 Ind. 324,325.--Chase v. Kendall, 6 id. 306. The only evidence in the case, except the bill itself, and the protest thereof, consists of the declarations of Charles Dickerson, and these declarations were not only made after the dissolution, as before stated, but were clearly made in relation to a transaction with reference to which Dickerson was in no sense the agent of the other members of the firm. The statements in Mr. Robinson's testimony in relation to Dickerson's refusing to attend Court after being subpoenaed, and in relation to Bethell's avoiding the service of the subpoena, might have afforded a good ground for an application for a continuance, or for an attachment against the supposed delinquents, but surely could not justify a judgment against them without evidence.
The Court not only rendered judgment, but ordered that Chester Bethell's property should be exhausted before the property of the other defendants should be levied upon, and this order, as well as the judgment, has no other basis than the declarations of Dickerson himself.
We think we have demonstrated, first, that there could be no recovery under the first paragraph of the complaint, because there was no attempt to prove notice of the dishonor of the bill; secondly, that there could be no recovery under the second paragraph of the complaint, because there was no evidence proving, or tending to prove, that the bill was drawn for the accommodation of the drawers, and that they, continuously, from the time of the drawing of the bill until it became due and payable, had no effects, whatever, in the hands of the drawee.
A. L. Robinson and C. L. Wheeler, for appellees.
The following was the argument of Mr. Robinson, for the appellees:
It is difficult to ascertain, by the brief of appellants, how many of the assignments of error are relied upon. That there may be no omission, I will take up each assignment separately.
The demurrers to separate parts of the complaint, calling them the first and second paragraphs (and they are so designated by the clerk, in making up the record), are not well taken for the reason that only one cause of action is set out. See 2 R. S. p. 38. "When the complaint contains more than one cause of action, each shall be distinctly stated in a separate paragraph, and numbered." That part of the complaint designated by the clerk as the second paragraph, is the amendment made by Turner and Wilson, by leave of the Court, showing why notice of the...
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