Askew v. Silman

22 S.E. 573, 95 Ga. 678

• Court: Supreme Court of Georgia
• Decided: March 25, 1895
• Status: Published

Opinion

Simmons, Chief Justice.

Mrs. Silman sued Askew and others, alleged to be members of the firm of Austin & Co., upon a promissory note signed in the firm name and dated June 17, 1890. Askew pleaded not indebted; also, that he had not ¡signed the note nor authorized any pei’son to do so for him, and had never ratified the signing; and further, that he was not a member of the firm when the note was signed and was not bound by the contract,, that the firm was dissolved January 11, 1888, and had ceased to do business from that date, which fact was known to the plaintiff when the note was executed. There was a verdict for the plaintiff’ against all the defendants sued, and Askew made a motion for a new trial, which was-overruled, and he excepted.

1. The main question at issue on the trial of the case was, whether .there was such notice of the dissolution of the partnership as would relieve Askew from liability for the debt in question. It appeared from the evidence that the dissolution took place, as alleged in the plea, more than two years prior to the date of the note, and that the note was given by Austin, one of the copartners, without the knowledge or consent of Askew, for money borrowed by Austin in the name of the firm at the time' the note was executed. Askew’s withdrawal from the partnership was announced soon after the dissolution,, in a newspaper published in the town in which the plaintiff resided and the firm conducted its business, the announcement appearing at different times, in the form of news items written by the editor- of the paper. The plaintiff was a subscriber to the newspaper when these notices appeared, but testified that she did not see them and that she had no notice or knowledge of the dissolution at any time prior to the execution of the note, but supposed when she took the note that Askew was still a member of the firm. She had been a customer of the firm, as a purchaser of goods, during Askew’s connection with it, but -was not a creditor before the date of the note. The court, in certain instructions to the jury which are complained of by the plaintiff'in error, charged them, in effect, that if the plaintiff' was a “customer” of the firm, she would be entitled to actual notice of the dissolution. We think the court erred in so charging. In order to relieve an ostensible partner from liability for debts contracted in the partnership name subsequently to his withdrawal from the firm, the dissolution must be made known “to creditors and to the world” (Code, §1895), but it is not necessary that the notice should be actual or personal except to creditors. Although it is often said in text-books and decisions that actual notice or knowledge of the dissolution must be brought home to former “customers” of the firm, this-language has reference only to creditors. (See 2 Bateson Partnership, §613; 17 Am. & Eng. Enc. L. p. 1124.) A customer in the sense in which the term was used in this case, — that is to say, one whose dealings with the •partnership have been confined to the purchase of its-goods, is entitled only to such notice as should be given to “the world.”

2-4. As to the notice which should be given to “ the' world,” no inflexible rule can be laid down. Publication in a public gazette circulated in the locality in which the business of the partnership has been conducted, if such publication is fair and reasonable as to its terms and the number of times it is made, is usually sufficient notice to the world. Ewing & Gaines v. Trippe, 73 Ga. 776; Parsons on Partnership (4th ed.), §317 and notes. And see Richards v. Butler & Carroll, 65 Ga. 593 ; Ellison & Harvey v. Sexton, 105 N. C. 356 ; 11 S. E. Rep. 180. An editorial notice, not signed by any member of the firm, may be as effectual for this purpose as an advertisement purporting to issue by authority of the partners over their signature. Solomon v. Kirkwood, 55 Mich. 256; Young v. Tibbitts, 32 Wisc. 79. Whether this is so or not is generally a question for the jury, and the court in the present case erred in charging, as a matter of law, that such notice would not be sufficient. “ It is not an absolute, inflexible rule that there must be a publication in a newspaper, to protect a retiring-partner. Any means of fairly publishing the fact of such dissolution as widely as possible, in order to put the public on its guard, — as, by advertisement, public notice in the manner usual in the community, the withdrawal of the-exterior indications of the partnership, — are proper to be considered on the question of notice.” Lovejoy v. Spafford, 93 U. S. 430. It should be left to the jury to say whether the retired partner made a reasonable and bona fide effort to acquaint the public with the fact of his retirement, and whether on the other hand the creditor, with the means and opportunity afforded him, knew or ought to have known of the fact. Even in the absence of any showing that notice of the dissolution was given, the fact that a considerable time elapsed betweenthe dissolution and the contracting of the debt has been deemed sufficient to render the creditor chargeable with notice. Certainly this fact would go far to show thathe debt was not or ought not to have been contracted on the credit of a former partner. Parsons on Partnership (4th ed.), §§317, 322. There is some question as to whether the jury may infer notice from general notoriety of the dissolution. (See 2 Bates on Partnership, §622, and cases cited.) We think, however, that the evidence excluded by the court below in this case, as to the general notoriety of Askew’s withdrawal from the partnership, although such notoriety may not of itself liave been sufficient to charge the plaintiff' with notice of the fact, ought to have been allowed to go to the iury, to be considered by them for what it was worth, in connection with the other evidence bearing on the question of notice.

5. If the money for which the note was given was borrowed and the note given without Askew’s knowledge or consent, and without subsequent ratification on his part, and if he was not liable on other grounds, the fact that the money was used in paying debts contracted by the firm prior to his withdrawal therefrom would not render him liable; and the court below erred in charging the jury as it did on this subject. Judgment reversed.