Homberger v. Alexander

• Decision Date: 27 July 1895
• Docket Number: 553
• Parties: MEYER HOMBERGER AND MORRIS KOENIGSBERGER, COPARTNERS AS M. HOMBERGER & CO., RESPONDENTS, v. DANIEL ALEXANDER AND JULIA ALEXANDER, COPARTNERS AS DANIEL ALEXANDER & CO., DEFENDANTS, JULIA ALEXANDER, APPELLANT
• Court: Utah Supreme Court

40 P. 260

11 Utah 363

MEYER HOMBERGER AND MORRIS KOENIGSBERGER, COPARTNERS AS M. HOMBERGER & CO., RESPONDENTS, v. DANIEL ALEXANDER AND JULIA ALEXANDER, COPARTNERS AS DANIEL ALEXANDER & CO., DEFENDANTS, JULIA ALEXANDER, APPELLANT

No. 553

Supreme Court of Utah

July 27, 1895

APPEAL from the District Court of the Third Judicial District. Hon Samuel A. Merritt, Judge.

Action by Meyer Homberger and Morris Koenigsberger, copartners as M Homberger & Co., against Daniel Alexander and Julia Alexander, copartners as Daniel Alexander & Co. From a verdict for plaintiff, Julia Alexander appeals.

Reversed.

Mr. C S. Varian, Messrs. Brown & Henderson, for appellant.

The statute authorizes the taking of depositions out of the state upon commission. It permits the parties to select the commissioner, but delegates no other authority to them. It requires the commission to authorize the administering of the oath and to take the deposition and certify the same. 2 Comp. Laws, 1888, §§ 3944-5-6. A stipulation that depositions might be taken before a certain notary in New York is not a waiver of the issuing of a commission. Ragan v. Cargill, 24 Miss. 540; Boggs v. State, 8 Ind. 463; Unis v. Admsts., 12 Gratt. 484. The certificate is fatally defective. It does not show whether the depositions were reduced to writing before or after the witnesses were sworn. Weeks Depositions, § 497; Stonebreaker v. Short, 8 Pa. 145. The general rule is--although our statute does not in terms require it--that the witness should be sworn in the same way he would be sworn if present at the trial, i. e., to state the truth, the whole truth and nothing but the truth. Weeks, § 497; 8 Pa. 155; Id. § 3; Amory v. Fellows, 5 Mass. 226. The note in suit was a new contract, made after the dissolution of the firm. Daniel Alexander had no authority to bind the retiring partner by a new contract. As said by Justice Story, his authority could "extend no further than to settle the partnership concerns already existing." Bell v. Morrison, 1 Pet. 371; Bank v. Humphreys, 1 McCord, 388; Lockwood v. Comstock, 4 McLean, 383; Rand Com. Paper, vol. 1, § 432; Daniels Neg. Inst. vol. 1, § 370; Morrison v. Perry, 11 Hun, 36; Palmer v. Dodge, 4 Ohio St. 21.

The firm having been dissolved at the time the note in suit was given, if appellant is liable, it is on the ground of estoppel; in fact, she did not make the note, but is held to plaintiffs because, being actually a partner, and known to plaintiffs as such at a prior time, she neglected to give them notice of the dissolution. Here is clearly a liability on the ground of estoppel in pais. Bigelow on Estoppel, 4 ed. p. 535. The rule is settled that estoppels must be especially pleaded. Bliss Code Pleading, § 364. Here the plaintiffs were permitted to give evidence of and recover on the ground of estoppel without any intimation given in the complaint. This was error. Rail v. Bank, 22 S.W. 865; Goodwig v. Underwood, 50 N.W. 819; Insurance Co. v. Johnson, 27 P. 101-2.

Messrs. Dey & Street, for respondents.

The law has long been settled that a retiring, ostensible or known partner will continue liable to former dealers for the firm's subsequent obligations until such previous dealers have actual notice of the dissolution derived from some source, no matter what. 17 Am. & Eng. Enc. of Law, p. 1117, and cases cited; 2 Bates on Part. § 606; Vernon v. The Manhattan Co., 22 Wend. 183, 195. The retiring partner can always relieve himself from the liability existing between copartners by which one may bind the other within the scope of their business, in their future transactions with those who have dealt with them as partners, by seeing that the prior dealers have actual notice of the dissolution. 17 Am. & Eng. Enc. of Law, pp. 1120-22, and cases cited; 2 Bates on Part. § 612, and notes; Leading Art. 26 Cent. Law J. 567; 1 Lind on Part. § 404, 406. As respondents had long previous dealings with appellant's firm, it is clear that in order to relieve Julia from liability on the note sued on herein, not only must there have been a prior dissolution of the firm of D. Alexander & Co., but M. Homberger & Co. must have been in some manner and from some source actually informed thereof. 2 Bates on Part. § 607. "The reason why a notice of dissolution is necessary is the same as in cases of revocation of other agencies, and is variously stated as arising from a species of estoppel to deny continuance of the agency, or on the ground of negligence, whereby credit is given, or from the presumption of a continuance of a state of affairs giving a person who once knows of the existence of a firm the right to assume it remains the same; or, it may be stated that until proper notice of dissolution, the partner's attitude is analogous to that of a partner holding out."

It was proper to declare on the note and allege partnership of the defendants, and it is well settled that a note made by one partner after dissolution, of which no notice was given or knowledge had, is the same as if given before dissolution. Lovejoy v. Spafford, 93 U.S. 430; 2 Bates on Part. § 607; Jausen v. Grinshaw, 26 Ill.App. 287; Clement v. Clement, 69 Wis. 599; Sibley v. Parsons, 53 N.W. 786 (Mich.) And the answer denying partnership puts in issue the question of dissolution and notice. Whiteside v. Lee, 2 Ill. 548; Washburn v. Walworth, 133 Mass. 499. Daniels on Neg. Inst. vol. 1, § 75, says: "Notwithstanding the dissolution of the firm, the use of the firm's name by one partner will bind all, unless due notice of the dissolution were given so as to affect the holder of the paper with its infirmities." And see cases cited in note. 1 Rand. on Com. Paper, § 432, also cited by appellants, makes this express exception: "But to discharge the firm's liability for a debt secured by its note, which had been renewed by one partner after the dissolution of the firm, the holder must have had notice of such dissolution before taking the renewal, etc.," and cases cited. Objections are made to the depositions read; First, because no commission was issued; and, Second, because of informalities in the certificate of the notary. These objections, if they had any force, came too late; such objections must be made by motion to suppress before the trial is proceeded with. This was settled in the recent cases of Am. Pub. Co. v. Mayne, 9 Utah, 318; Howard v. Stilwell, 139 U.S. 109-205. Moreover, the deposition was taken pursuant to a written stipulation by which "All objections to form of taking the deposition were waived" and the certificate shows that the deposition was taken before the proper notary and duly signed and sworn to. Every page was signed by the notary and his seal affixed thereto. Beyond question, the objection was untenable. Weeks Law of Dep. §§ 438, 435; Day v. Raquet, 14 Minn. 273; Malm v. Barton, 27 Minn. 530; Palmer v. U. Mining Co., 70 Cal. 614; People v. Grundell, 75 Cal. 301; Blackie v. Cooney, 8 Nev. 41-48; Com. L. § 3946, p.445.

SMITH, J. BARTCH and KING, JJ., concur.

OPINION

SMITH, J.:

This action was brought in the Third District Court by plaintiffs against the defendants as copartners upon a promissory note dated August 4, 1892, for $ 1,200, signed, "D. Alexander & Co." The complaint charges that the defendants were copartners at the time of the making of the note, and that they as such made, executed, and delivered the same to plaintiffs. No defense was made by D. Alexander, but Julia Alexander filed an answer, denying that she was a copartner with D. Alexander at the time the note was made, and denied that she and D. Alexander, as copartners or otherwise, executed or delivered the note. The trial was had in the district court upon the complaint and this answer of Julia Alexander. Trial was had before a jury. Verdict and judgment for plaintiffs. Motion for new trial was overruled, and the appeal is by Julia Alexander. On the trial the plaintiffs offered in evidence the depositions of the two members of the plaintiffs' firm, and of the firm book-keeper, which were taken upon the following stipulations: "It is hereby stipulated and agreed that the depositions of Meyer Homberger, Morris Koenigsberger, and Isaac Speien may be taken in the above-entitled cause on the part of the plaintiffs, before George Einstein, a notary public in the city of New York, state of New York, and that when so taken the depositions may be read and used in evidence on the trial of said cause on the part of the plaintiffs. It is expressly agreed and stipulated that all objections to the form of taking said depositions are hereby waived; that each party reserves the right to object to any and all questions and answers on the ground of irrelevancy, incompetency, or immateriality, and to each of said depositions on any other competent ground; and such depositions, when taken, shall be forwarded by the officer taking the same to the clerk of said court at Salt Lake City, Utah." Each page of the answers to the interrogatories contained the name and notarial seal of the notary. Each of the depositions was signed by the witness, and a jurat attached, as follows: "Sworn to before me, this 8th day of March, 1894. George Einstein, Notary Public."

The certificate of the notary was in the following language: "City and County of New York--ss: I, George Einstein, do hereby certify that I am a resident of the city of New York, and a duly-qualified notary public in and for the city and county of New York, of the state of New York. Meyer Homberger, Morris Koenigsberger, and Isaac Speien appeared in person before me, and answered the interrogatories and cross interrogatories herein, as appears by the duly signed and sworn-to depositions hereto annexed. Dated New York, March 8th, 1894. George Einstein. [Seal.]"

A motion...