Mims v. Brook & Co.
| Decision Date | 09 December 1907 |
| Docket Number | 720. |
| Citation | 59 S.E. 711,3 Ga.App. 247 |
| Parties | MIMS v. BROOK & CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where the plaintiff seeks to hold a defendant liable as a partner on a contract made in the name of a partnership, on the theory that, even if such defendant were not in fact a member of the firm, his conduct has estopped him from denying such relation, it is not necessary that the facts by which the plaintiff intends to show the estoppel should be set forth in the petition. A direct allegation that the defendant is a member of the partnership is sufficient.
[Ed Note.-For cases in point, see Cent. Dig. vol. 38 Partnership, § 408.]
Before one not in fact a partner will be estopped from denying his connection with the firm, it must appear not only that he, by admissions, conduct, or otherwise, held himself out as partner, but also that the opposite party was misled by the putative status and acted thereon.
[Ed Note.-For cases in point, see Cent. Dig. vol. 38 Partnership, § 52.]
In a case where the admissions of a defendant who has filed a plea of no partnership are offered in evidence against him, it is error for the court to refuse a timely written request to charge the jury that admissions should be scanned with care.
Where, as against a defendant filing a plea of no partnership, the fact of the partnership is otherwise prima facie established, bill heads of the firm, used in the business and containing his name as a partner, are admissible in evidence against him; and especially is this true where the proof makes it probable that he knew his name was being so used.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 66, 72.]
Upon the question of the character of notice necessary to be given upon the dissolution of a partnership, in order to relieve the retiring partner, and of the burden of proof in such cases, the decision in the case of Bush v. McCarty Co., 127 Ga. 308, 56 S.E. 430, is explicit and controlling.
Evidence tending to establish knowledge on the part of the plaintiff's bookkeeper of the dissolution of a partnership with whom the plaintiff has been doing business is, in the absence of any proof that the bookkeeper's authority to receive notice is greater than that usually possessed by those in that employment, inadmissible to show notice to the plaintiff.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 670-684.]
If a creditor of a partnership, after a dissolution thereof, with notice of such dissolution, takes from one partner, without the direction or consent of the other, a promissory note in renewal and extension of a pre-existing debt of the partnership, the partner not so consenting is discharged from liability on the debt.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 645-647.]
Error from City Court of Atlanta; A. E. Calhoun, Judge.
Suit by Brook & Co. against the College Park Milling Company, an alleged partnership. From a judgment for plaintiffs, S. G. Mims brings error. Reversed.
J. F. Golightly and T. O. Hathcock, for plaintiff in error.
Payne, Jones & Jones, for defendants in error.
Suit was brought by Brook & Co. against the College Park Milling Company on a note signed in the firm name, and it is alleged that the milling company is a partnership composed of Mims and Hathcock. Mims filed a plea alleging that he was not a partner. It appears that in 1903 Mims and Hathcock did business as partners under the name College Park Milling Company. In 1904 Mims sold out his interest in the mill to Hathcock, and the partnership was dissolved; Hathcock continuing the business under the name of College Park Milling Company. No publication of the dissolution was made. The evidence was doubtful as to whether the plaintiffs were creditors of the partnership, within the purview of the rule requiring actual notice, and was in sharp conflict as to whether they had actual notice of the dissolution. In 1904 and 1905 they sold corn to the milling company, and took a note executed by Hathcock in the name of the milling company in settlement of the account, and this note was from time to time in like manner renewed. It was the contention of the plaintiffs that Mims, after the dissolution and at the time they were making the sales, told them that he was a partner, and afterwards expressly directed them to take the renewal notes as they did; and this he as emphatically denied. Effort was made by the defendant to show that while publication of the dissolution was not made, it was a matter of common notoriety among the business men of both College Park and Atlanta. The plaintiffs introduced in evidence a number of bill heads of the College Park Milling Company, dated in 1904 and 1905, containing the name of Mims as a partner. Mims denied knowledge of their existence, and objected to their introduction in evidence. The jury found against Mims' plea of no partnership, and to the overruling of his motion for a new trial he brings error. Upon an examination of the record, we find that a new trial must be granted upon some of the grounds; but, instead of taking up the assignments of error seriatim, we shall lay down a few rules of law which we think will cover the case. As tested by what we are about to say, some of the exceptions are meritorious; others, not.
1. Where the plaintiff sues a number of defendants as partners he may recover by showing either an actual partnership undissolved, or, as against one filing a plea of no partnership, an estoppel on his part to deny liability as a...
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