97 Ga. 582 | Ga. | 1896
The Southern Banking & Trust Company brought an notion against Hudgins, as drawer and indorser, and J. A. ■Clarke and H. P. Camp, partners under the firm name of Clarke & Camp, as acceptors, upon a draft dated June 5th, 1893, drawn by Hudgins, payable to his order and indorsed hy him to the plaintiff, and purporting to have been accepted by Clarke & Camp on June 6th, 1893.
The action was defended by Camp1, who alleged in his pleas that the firm of Clarke & Camp was dissolved Hay 22, 1893, and proper notice of the dissolution published. Also, that the draft upon which the action was brought had never been accepted by himself; that neither Clarke, nor any one else, was authorized to accept the same in the firm name; and that he (Camp) had never ratified the act of acceptance. At the conclusion of the evidence, the judge directed a verdict for the plaintiff. Camp moved for a new trial; and his motion being overruled, excepted. The facts of the case are about as follows:
It appears that while the firm was yet in existence, Hudgins had drawn numerous drafts upon it, payable to his order and duly accepted, most, if not all, of which he had discounted with the plaintiff at its bank. At the time the firm was dissolved, the plaintiff — certainly within the
Creditors of a partnership are entitled to actual notice of' its dissolution. This doctrine is well settled, and was distinctly recognized in Askew v. Silman, 95 Ga. 678. (See remarks of Simmons, C. J., in this connection, on. pages 680--681, and authorities there cited.) It seems clear that this rule is applicable in the present case. At-the time of the dissolution of the firm of Clarke & Camp, it was actually indebted to- the plaintiff upon its own acceptances, and this fact was well known to the firm. We are at a loss to perceive why the plaintiff should not at that time have been regarded as a creditor and entitled to all its rights as such. So far, therefore, as it was concerned, mere
Tbe only remaining question is: Did the statement made by Camp to tbe bank’s collecting messenger amount to notice to tbe bank itself of tbe fact of dissolution? "We think not. In tbe first place, it seems from Camp’s testimony that be stated to this messenger that tbe dissolution bad taken place before this event really happened. But without attaching special importance to this apparent incongruity, we will simply remark it is manifest that, in tbe very nature of things, this messenger’s agency was of a special and limited character.' ■ It cannot, with any sort of fairness, be asserted that be was a general agent of tbe bank. It affirmatively appeared that it was not within tbe scope of bis business or duty either to report tbe responses of persons who refused to pay papers presented, or to arrange for a renewal of papers in bis bands for collection. While Camp may not have been aware of tbe limited sphere within wbicb this agent was authorized to act, be certainly must have known that tbe collector was in no sense a general agent of tbe bank. Under these circumstances, could be rightly assume that this collector bad authority to receive for tbe bank notice of tbe fact of dissolution? Unless be could thus assume, then he was bound to inquire into tbe extent of tbe agent’s authority. Under tbe facts appearing, we think this duty devolved upon Camp, and that be acted at bis peril in assuming that what be told tbe collector would be actually communicated to tbe bank. It was not so communicated, and therefore
As no duty devolved upon the bank to make any effort to ascertain that the firm of Clarke & Camp had dissolved, and Camp utterly failed to take reasonable and proper steps to meet the obligation resting upon him of giving due notice of this fact, the rule above announced operates very justly in the present case. Judgmmt affirmed.