Dowzelot v. Rawlings

• Decision Date: 31 October 1874
• Parties: EUGENE DOWZELOT, et al., Respondents, v. CHARLES RAWLINGS, Appellant.
• Court: Missouri Supreme Court

58 Mo. 75

EUGENE DOWZELOT, et al., Respondents,

v.CHARLES RAWLINGS, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Audrain Circuit Court.

Forrist & Ladd, for Appellant.

Gordon & McIlhany with E. B. Sherzer, for Respondents.

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiffs were commission merchants in the city of St. Louis. The defendant, Rawlings, and one Pennison were partners in baling and shipping hay at Centralia, Mo., in the latter part of 1871, and the first part of 1872.

They had no sign erected at their place of business. No notice was published announcing the dissolution of the firm; and the time when such dissolution occurred is not clear. There was a tendency in the evidence to show that this event occurred on the 20th day of February, 1872, and there was also evidence in conflict with this, and tending to show that such dissolution did not occur until a later period. Pennison came down to St. Louis about the 26th or 27th of February, 1872, and applied to plaintiff's firm for an advance on three cars of hay, stating that he and Rawlings were partners, and that the most of the hay would be shipped next day, and the residue in a few days thereafter.

There had been no previous acquaintance or dealings between the parties; but one of plaintiff's firm testified to having before this, seen hay in cars at the N. M. R. R. depot, covered with tarpaulin, marked “Pennison & Rawlings,” and that hay is usually covered in that way, and marked with the name of the shipper.

Plaintiffs advanced the sum of $350 by check, in favor of Pennison and Rawlings. The hay was never shipped nor the money refunded.

1st.--As to persons who have had no previous dealings with or knowledge of the firm, or of those who composed it, no notice of its dissolution is necessary in order to prevent liability in consequence of subsequent debts or engagements, from attaching to the partner who has retired.

The object in giving notice, is to remove the impression which has been created on the minds of those who have dealt with, or had knowledge of the firm, that certain persons continue to compose it. Now, so far as mere strangers are concerned, it is obvious that no such impression can exist, and they cannot be said to give credit to, or place reliance on, a person of whom they are ignorant. If, however, a former partner willingly suffers his name to appear as still belonging to the firm from which he has retired, as for instance, in the title of the firm over the door of the shop or store, he will be held liable to any one who, by his conduct in this particular, has been misled into giving credit to the firm of which he continues an ostensible member, and this will be the case, whether notice be given by publication or not. Some of the authorities hold, that public notice of dissolution is necessary even as to strangers. But the doctrine I have stated, is that maintained by Judge Story, and also Chancellor Kent; (Sto. Part., § 160; 3 Kent's Com., 68,) and has heretofore received the approval of this court. (Pope vs. Risley, 23 Mo., 185.)

The refusal of the court below to conform its instructions to this view of...