Robertson Lumber Co. v. Anderson

• Decision Date: 29 December 1905
• Citation: 105 N.W. 972,96 Minn. 527
• Parties: ROBERTSON LUMBER CO. v. ANDERSON et al.
• Court: Minnesota Supreme Court

96 Minn. 527

105 N.W. 972

ROBERTSON LUMBER CO.

v.ANDERSON et al.

Supreme Court of Minnesota.

Dec. 29, 1905.

Appeal from District Court, Polk County; William Watts, Judge.

Action by the Robertson Lumber Company against Cameron Anderson and others. Verdict for plaintiff. From an order denying a new trial, Anderson appeals. Reversed.

Syllabus by the Court

A partial payment made upon a partnership debt, after the dissolution of the firm, will suspend the operation of the statute of limitations as to other partners, in favor of a creditor receiving such payment, who has had dealings with the partnership and has no notice of its dissolution.

Notice to an agent of a corporation, to be notice to such corporation, must be to an agent who is acting within the scope of his authority, and must concern some matter which it is his duty to communicate to his principal.

No particular kind of notice is essential to charge the creditor with notice of dissolution of a partnership.

In this case, payment on a partnership debt was made by one partner to the traveling auditor of the creditor firm. Two general managing agents of that firm, whose authority to receive notice was disputed, had actual notice of the dissolution. Their books contained entries of sales to the firm and of sales to one partner as an individual after the dissolution. It was the admitted duty of the traveling auditor to, and he did, examine these books. Held, the question of notice to the firm through all these agents was one of fact for the jury. H. A. Bronson and D. T. Collins, for appellant.

Bosard & Bosard, for respondent.

JAGGARD, J.

This was an action by the plaintiff and respondent to recover from the defendants Anderson and Hunter, copartners as Anderson & Hunter, $301.81 for lumber sold the defendants between July 24 and October 5, 1894. The plaintiff, to avoid the bar of the statute of limitations, alleged that defendants paid $1 on account on November 22, 1900. Defendant Hunter defaulted. Defendant and appellant Anderson in his answer set up the bar of the statute as to himself. The evidence showed his residence in Minnesota for more than six years after the account became due. Accordingly the right of plaintiff to recover depends upon the effect of the payment of $1 by Hunter, which was clearly proved. The partnership of defendants was dissolved in April, 1900. On the 12th of April notice was published. During all the times involved the plaintiff had its home office at Grafton, and a retail lumber yard at East Grand Forks, Minn., in charge of one Nesne, and another at Grand Forks, N. D., in charge of one McDonald. Each agent had complete charge of the yard and of the business of the company in each city, respectively. He made sales, extended credits, kept the books, and attended to collections. Both Nesne and McDonald knew of the partnership dissolution and had read published notices thereof. Nesne had a conversation with Anderson with reference to that dissolution. He had previously sold lumber to the firm, and charged the same to the firm account, and on and between April 14, 1900, and January 31, 1901, he sold Anderson in his own name and individually lumber to the amount of $1,076. This account appeared upon the books of the plaintiff at East Grand Forks. Neither of these local agents had ever had the firm account here sued on for collection. It did not appear upon their books; but both knew of its existence. Wonderlich, to whom Hunter paid $1 on the firm account, was the traveling auditor for the plaintiff. He checked up accounts and looked after credits, made collections and settlements, and had charge of the collection of the balance of account due from the defendant firm to the plaintiff, here sued on. In examining the accounts in the cities of Grand Forks and East Grand Forks, he found that the account there against Anderson & Hunter was fully paid and that certain accounts against Anderson were charged to him solely and separately. Some of these personal accounts had been started as early as 1897. The court charged that there could be no recovery if the jury found from the evidence that the partnership was dissolved in the last week in March or first week in April, 1900, if, when the payment of $1 was made to Wonderlich, while acting as agent or auditor for the plaintiff, he received actual notice or knew that the said partnership had been dissolved. He excluded from the jury any consideration of constructive notice through Wonderlich, or of notice through the agents Nesne and McDonald.

In the language of counsel for the plaintiff, a partial payment made upon a partnership debt after the dissolution of the firm wil suspend the operation of the statute of limitations as to other partners in favor of the creditor receiving such payment, who has had dealings with the partnership and has no notice of its dissolution. Whitney v. Reese, 11 Minn. 138 (Gil. 87); Bryant v. Lord, 19 Minn. 396 (Gil. 342). And see Nat. Bank v. Meader, 40 Minn. 325, 41 N. W. 1043; Rodney Sage v. Ensign, 2 Allen (Mass.) 245;Buxton v. Edwards, 134 Mass. 567;Clement v. Clement, 69 Wis. 599, 35 N. W. 17,2 Am. St. Rep. 760;Austin v. Bostwick, 9 Conn. 496, 25 Am. Dec. 42;Graves v. Merry, 6 Cow. 701, 16 Am. Dec. 471;Beardsley v. Hall, 36 Conn. 270, 4 Am. Rep. 74. ‘A corporation from its nature can in a strict sense have only constructive notice or knowledge of fact.’ 10 Cyc. 1053, 1054. There is applied to it the ordinary rule that ‘notice to the agent in notice to the principal. The theory * * * is that if the principal had in person transacted the business he would have acquired the knowledge or received the notice the agent acquires and receives, and therefore is chargeable with such knowledge and notice, and upon principles of public policy it is and must be presumed that the agent communicates to the principal the facts of which he acquires knowledge or notice.’ Birmingham T. & S. Co. v. Louisville Nat. Bank. (Ala.) 13 South. 112,20 L. R. A. 600; Wade on Notice, § 672; Sooy v. State, 41 N. J. Law, 395; Cox v. Pearce (N. Y.) 20 N. E. 566,3 L. R. A. 563; 3 Current Law, 89. If notice to an agent is relied upon, it must be to an agent who is acting within the scope of...