Holland v. Brother
Decision Date | 31 July 1876 |
Citation | 57 Ga. 37 |
Court | Georgia Supreme Court |
Parties | E. W. Holland, plaintiff in error. v. Long & Brother, defendants in error. |
New trial. Evidence. Partnership. Notice. Charge of Court. Before Judge Peeples. Fulton Superior Court. October Term, 1875.
Long & Brother brought complaint against the Atlanta Furniture Manufacturing Company, a partnership alleged to be composed of J. M. Willis and E. W. Holland, on two drafts accepted by the firm. The case was dismissed as to Willis, by consent, he having been discharged in bankruptcy. Holland pleaded that he was not a partner.
On the trial plaintiffs introduced the following evidence: The acceptances, which were in the usual form, signed by the "Atlanta Furniture M'f'g Company, per W. L. Gordon, business man'ger."
The testimony of plaintiffs, which was, in brief, as follows: They became acquainted with defendants by means of a letter written to them by the latter, asking for a price list of their goods. Afterwards they filled orders for the company. The paper on which such letter and orders were written was headed: The letter referred to above was signed "Atlanta Furniture M\'f\'g Co., H. Sells, superintendent." The goods for which the drafts were drawn, were sent to defendants\' firm in December, 1873, and January, 1874. Plaintiffs never had any notice of the withdrawal of Holland from the partnership.
A plea, which Holland had signed and sworn to, in a suit against the same company, in the justice court, in which it was designated as the " The plea stated that Holland had not been a member of said firm since September 30th, 1873. *J. T. Pendleton, who testified that he had a conversation with Holland in the summer of 1874 in regard to some claims which he held against the Atlanta Furniture Manufacturing Company; that Holland stated that he had withdrawn from the company on September 30th, 1873, no one knowing he was a partner, and admitted that he signed and swore to the plea mentioned above
Defendant's testimony was, in brief, as follows: He never was a partner in the "Atlanta Furniture Manufacturing Company, " nor authorized his name to be used as such. Became interested with Willis at the factory under the following circumstances: One Dr. Sells, who was doing business at said factory, became involved in a difficulty about the payment of $500 00 He had a large amount of unfinished goods on hand, and said if defendant and Willis would pay the $500 00 for him, he would give them the use of the shop and tools to finish the work. Defendant needed some furniture; he advanced $250 00 and Willis $250 00, to complete the unfinished furniture; when that was done had nothing further to do with it. Sold out his interest in September, 1873; was to get $2 50 00 worth of furniture; only received $225 00. Did not give notice of the sale because he did not think it necessary. Did not know that he was a partner in the "Atlanta Furniture Manufactory" until he had sold his interest in the factory. Was in a hurry when he signed the plea; read it but did not look at it carefully; supposed it referred to said "Furniture Manufactory;" also thought the conversation with Pendleton referred thereto. The factory on Butler and Harris streets had no connection with the Atlanta Furniture Manufacturing Company, whose business was conducted on Whitehall Street. Knew nothing of the bill-heads referred to in the plaintiff's testimony.
The jury found for the plaintiffs $502 15, besides interest. Defendant moved for a new trial on the following, among other grounds:
1st. Because the court admitted in evidence the plea signedby the defendant over his objections.
*2d. Because the court erred in charging substantially as follows: (a) If Holland was a partner in defendant's firm before the drafts sued on were made, so appeared to the world, and gave no notice of his withdrawal, he would still remain a partner as to creditors of the firm, until notice should be given of such withdrawal or of a dissolution of the partnership. (b) If he was not a member of the firm, but allowed his name to be held out to the world as such, with his knowledge or consent, he would still be liable for debts created on the faith thereof. (c) If there is an irreconcilable conflict in the testimony of witnesses who are equally credible, the relation of the witnesses to the case, their opportunities for knowledge and any inducements they may have to swear falsely may be taken into consideration.
3d. Because the verdict was contrary to the law and evidence.
The motion was overruled, and defendant excepted.
The case was tried before Judge Hopkins and motion for new trial heard by his successor, Judge Peeples.
Candler & Thomson; McCay &...
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