Haddock, Reed & Co. v. Crocheron

• Decision Date: 01 January 1869
• Citation: 32 Tex. 276
• Parties: HADDOCK, REED & CO. v. H. CROCHERON.
• Court: Texas Supreme Court

32 Tex. 276

HADDOCK, REED & CO.

v.H. CROCHERON.

Supreme Court of Texas.

1869.

1. One partner of a firm can not, after a dissolution of the partnership, bind the other partner by a new engagement.

2. A note given by one partner after a dissolution of the partnership does not bind the other partner, although given in the partnership name and in consideration or settlement of a subsisting partnership liability.

3. The signing a note with the firm name “in liquidation” is of itself notice to the taker of the note that the partnership had been dissolved.

4. The plaintiffs sued on a note given them in the name of a firm in liquidation. The defense was pleaded that the note was given by one of the partners after dissolution of the partnership, and without the authority of the partner sued. The plaintiffs then amended their petition and set up a partnership note in lieu of which the note first sued on was given. Held, that against the original note thus set up by the amended petition, the statute of limitations continued to run until the amended petition was filed.

APPEAL from Bastrop. Tried below before the Hon. David Sheeks.

In November, 1867, the appellants sued the appellee as a member of the firm of Dimon & Crocheron, on two notes for $704 each, dated February 24th, 1860, and due respectively in three and four months after date. The notes were signed ““Dimon & Crocheron, in liquidation.” The petition alleged that Dimon was dead.

Crocheron answered that the firm of Dimon & Crocheron was dissolved long before the execution of the notes sued on; that he did not execute, nor authorize any one else to execute the notes sued on; and that he was not liable for any contracts made by Dimon at the date of the notes.

The plaintiffs then amended and set up a note of the firm of Dimon & Crocheron, made in 1857, and before they dissolved, for a balance due on which the note described in the original petition was given.

The defendant pleaded the statute of limitations to the amended petition.

At the trial the evidence of a book-keeper of the plaintiffs, in relation to entries on their books respecting the state of accounts between them and Dimon & Crocheron, was excluded, on objections of the defendant, and the plaintiff excepted.

A jury was waived, and the cause submitted to the court, who rendered judgment for the defendant. A motion for a new trial was made and overruled, and the plaintiffs appealed.

Hancock & West, for the appellants. (On motion for rehearing.) If the original note was a nullity from want of authority in Dimon to execute it so as to bind Crocheron, then the original cause of action, the first note, was not merged in the notes sued on, and an action could be maintained on the original note. And such was the effect of the amendment. 7 Mass. 123; 13 Wend. 505;3 N. H. 348; 3 East, 104; 1 Chit. Pl. marginal page 105.

The court below disregarded this, and excluded evidence going to show the fact that this note was one in lieu of which the notes first sued on were given.

A. D. McGinnis, for appellee. It is respectfully submitted, that it is not in the power of one partner to bind other members of the firm by any acknowledgment or contract after the dissolution of the partnership, unless it is shown by evidence aliunde that the copartnership had contracted the indebtedness anterior to the dissolution. See 3 Kent, Com. 351 n.; Story, Part. §§ 323, 324 and notes; Speake v. White, 14 Tex. 364;White v. Tudor, 24 Tex. 639.

It is submitted the evidence in this case is not sufficient to show there was any antecedent indebtedness of Dimon & Crocheron, for which the note was given. All the witnesses of appellants testifying as to the contents of appellant's books being properly excluded by the court, because the books themselves ought to have been produced in court, that they might have been examined and scrutinized by the party sought to be charged, after which, if the court was satisfied they were correctly and honestly kept as a book of original entries, that the charges were made at the time of the sale of the articles, and the plaintiffs had made the suppletory oath required, they might have been admitted as evidence, but there is no rule that would permit evidence of the contents...