Franklin Buggy Co. v. Carter

Court of Appeals of Georgia

Franklin Buggy Co. v. Carter

94 S.E. 820, 21 Ga. App. 576, 1918 Ga. App. LEXIS 411

CourtCourt of Appeals of Georgia

DecidedJanuary 21, 1918

Docket8858

StatusPublished

Cited by2 cases

This text of 94 S.E. 820 (Franklin Buggy Co. v. Carter) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franklin Buggy Co. v. Carter, 94 S.E. 820, 21 Ga. App. 576, 1918 Ga. App. LEXIS 411 (Ga. Ct. App. 1918).

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Opinion

Bloodworth, J.

' 1. There was no error in admitting the testimony of E. L. Carter as complained of in the ground 1 of the amendment to the motion for a new trial.

3. “A ground of a motion for a new trial based upon the admission of testimony is altogether vain and futile unless the ground is complete in itself and shows what objections to the testimony were urged at the time it was offered or admitted. Register v. State, 10 Ga. App. 623 (74 S. E. 429); Smith v. Smith, 133 Ga. 170 (65 S. E. 414); Cook v. State, 134 Ga. 347 (67 S. E. 813); McCray v. State, 134 Ga. 416 (68 S. E. 62, 20 Ann. Cas. 101); Georgia Railroad v. Daniel, 135 Ga. 108 (68 S. E. 1024); Jones v. State, 135 Ga. 357 (69 S. E. 537); Johnson v. Ware, 135 Ga. 365 (69 S. E. 481); Glasco v. State, 137 Ga. 336 (73 S. E. 578); Hill v. Chastain, 138 Ga. 750 (75 S. E. 1130). And it must appear that the same objection urged in the motion for a new trial was made upon the trial. Murphy v. Creamer, 10 Ga. App. 593 (74 S. E. 61); Cooner v. State, 16 Ga. App. 539 (85 S. E. 688), and cases there cited.” Wilkinson v. State, 18 Ga. App. 330 (3) (89 S. E. 460). For these reasons, ground 3 of the amendment to the motion for a new trial can not be considered by this court.

3. As we see this case there was no error in the charge com[579]*579plained of in ground 3 of the amendment to the motion for a new trial. The effect of the verdict is to establish the fact, so far as this court is concerned, that the notice to the traveling salesman was given as claimed by the defendant. The only question for determination is, was the notice sufficient? Section 3163 of the Civil Code (1910) is as as follows: “The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world. By the retiring of a dormant partner, it must be made known to all who had knowledge of his connection-with the firm.” As the plaintiff in this case had previously sold goods and given credit to the firm of which the defendant was formerly a member, that firm was a “creditor” in the meaning of the word as employed in this section, and it must appear that actual notice was given to the said firm. Bush v. McCarty Co., 127 Ga. 308 (56 S. E. 430, 9 Ann. Cas. 240). Section 3599 of the Civil Code (1910) is as follows: “Notice to the agent of any matter connected with his agency is notice to the principal.” The question then arises, is the giving by a former member of a firm to a commercial traveler, “a drummer,” whose business is. to sell goods for his principal, notice of the dissolution of the firm a “matter connected with his agency?” We think it is. Where a firm is dissolved, ánd a salesman approaches a former member thereof and is told he is no longer a member of the firm, we think this is actual notice to the principal; and where the salesman later goes to the other member of the firm, who gives an order for goods and signs the firm’s name thereto, we think it is the duty of the salesman to report to his firm the information received from the former member concerning the dissolution, and his failure to- do so would not prevent the member of the firm who had retired from successfully pleading “no partnership,” especially when sued upon a note given after dissolution, in renewal of the account. See Civil Code (1910), §§ 3188, 4387. A case almost exactly like the instant one is that of Ach v. Barnes, 107 Ky. 219 (53 S. W. 293), in which it was held that notice to the plaintiff’s, traveling salesman that the defendant had withdrawn from a firm to which the salesman sold goods for the plaintiff was notice to the plaintiff, so as to relieve the defendant from liability for the price of the goods sold.

4. The alleged newly discovered evidence can not be consid[580]*580ered, for it is not made to appear “by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code (1910),.§ 6086.

5. There was evidence to support the verdict and no error was committed when a new trial was refused.

Judgment affirmed.

Broyles, P. J., and Harwell-, J., concur.

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Bloodworth, J.

' 1. There was no error in admitting the testimony of E. L. Carter as complained of in the ground 1 of the amendment to the motion for a new trial.

3. “A ground of a motion for a new trial based upon the admission of testimony is altogether vain and futile unless the ground is complete in itself and shows what objections to the testimony were urged at the time it was offered or admitted. Register v. State, 10 Ga. App. 623 (74 S. E. 429); Smith v. Smith, 133 Ga. 170 (65 S. E. 414); Cook v. State, 134 Ga. 347 (67 S. E. 813); McCray v. State, 134 Ga. 416 (68 S. E. 62, 20 Ann. Cas. 101); Georgia Railroad v. Daniel, 135 Ga. 108 (68 S. E. 1024); Jones v. State, 135 Ga. 357 (69 S. E. 537); Johnson v. Ware, 135 Ga. 365 (69 S. E. 481); Glasco v. State, 137 Ga. 336 (73 S. E. 578); Hill v. Chastain, 138 Ga. 750 (75 S. E. 1130). And it must appear that the same objection urged in the motion for a new trial was made upon the trial. Murphy v. Creamer, 10 Ga. App. 593 (74 S. E. 61); Cooner v. State, 16 Ga. App. 539 (85 S. E. 688), and cases there cited.” Wilkinson v. State, 18 Ga. App. 330 (3) (89 S. E. 460). For these reasons, ground 3 of the amendment to the motion for a new trial can not be considered by this court.

3. As we see this case there was no error in the charge com[579]*579plained of in ground 3 of the amendment to the motion for a new trial. The effect of the verdict is to establish the fact, so far as this court is concerned, that the notice to the traveling salesman was given as claimed by the defendant. The only question for determination is, was the notice sufficient? Section 3163 of the Civil Code (1910) is as as follows: “The dissolution of a partnership by the retiring of an ostensible partner must be made known to creditors and to the world. By the retiring of a dormant partner, it must be made known to all who had knowledge of his connection-with the firm.” As the plaintiff in this case had previously sold goods and given credit to the firm of which the defendant was formerly a member, that firm was a “creditor” in the meaning of the word as employed in this section, and it must appear that actual notice was given to the said firm. Bush v. McCarty Co., 127 Ga. 308 (56 S. E. 430, 9 Ann. Cas. 240). Section 3599 of the Civil Code (1910) is as follows: “Notice to the agent of any matter connected with his agency is notice to the principal.” The question then arises, is the giving by a former member of a firm to a commercial traveler, “a drummer,” whose business is. to sell goods for his principal, notice of the dissolution of the firm a “matter connected with his agency?” We think it is. Where a firm is dissolved, ánd a salesman approaches a former member thereof and is told he is no longer a member of the firm, we think this is actual notice to the principal; and where the salesman later goes to the other member of the firm, who gives an order for goods and signs the firm’s name thereto, we think it is the duty of the salesman to report to his firm the information received from the former member concerning the dissolution, and his failure to- do so would not prevent the member of the firm who had retired from successfully pleading “no partnership,” especially when sued upon a note given after dissolution, in renewal of the account. See Civil Code (1910), §§ 3188, 4387. A case almost exactly like the instant one is that of Ach v. Barnes, 107 Ky. 219 (53 S. W. 293), in which it was held that notice to the plaintiff’s, traveling salesman that the defendant had withdrawn from a firm to which the salesman sold goods for the plaintiff was notice to the plaintiff, so as to relieve the defendant from liability for the price of the goods sold.

4. The alleged newly discovered evidence can not be consid[580]*580ered, for it is not made to appear “by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code (1910),.§ 6086.

5. There was evidence to support the verdict and no error was committed when a new trial was refused.

Judgment affirmed.

Broyles, P. J., and Harwell-, J., concur.

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94 S.E. 820, 21 Ga. App. 576, 1918 Ga. App. LEXIS 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-buggy-co-v-carter-gactapp-1918.

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