White v. Tudor

24 Tex. 639

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Bell, J.

We are of opinion that the third specification of the assignment of errors, presents for our consideration an error, for which the judgment of the court below must be reversed. It is clear from the evidence, that the note sued on was executed by Ashworth, after the dissolution of the firm of S. A. White & Co. The law seems to be clearly settled, that after the dissolution of a partnership, one of the partners cannot impose new obligations upon the firm, or vary the form or character of those already existing. (3 Kent’s Com. 72.) It is also held, that one partner cannot, after the dissolution of the partnership, endorse a note in the name of the firm, even to pay a prior debt of the firm. (Humphries v. Chastain, 5 Georgia Rep. 166.) It is also held, and may be regarded as settled, that a general authority to one partner, upon a dissolution, to settle the business of the firm, does not authorize him to give a note in the name of the firm, for a firm debt, or to renew one given before the dissolution. (See the authorities cited in note to 3 Kent’s Com. p. 73.) There was no sufficient evidence in this case to show that Ashworth had any authority from White, to execute the note in question. The exception, therefore, to the admissibility of the note in evidence, after the defendant’s plea of non est factum, was well taken, and ought to have been sustained by the court.

There is nothing in the evidence, from which the inference can be drawn, that the plaintiff, Tudor, did not know of the dissolution of the partnership between White and Ashworth, at the time the dissolution took place, or before the execution of the note sued on.

We are of opinion, that the court below did not err in admitting the testimony of Ashworth. It is held, that a co-partner of the defendant, or the executor of a deceased partner, are competent witnesses for the plaintiff. (3 Phillips’ Ev. 398, last edit.; Blackett v. Weir, 5 Barn. & Cres. 385; Hudson v. Robinson, 4 Maule & Selwyn, 475.)

For the error of the court below, in admitting the note in evidence, without sufficient proof that it was executed by the authority of the defendant, we are of opinion that the judgment of the District Court be reversed, and the cause remanded.

Reversed and remanded.