45 S.E. 954 | N.C. | 1903
This action was brought by the plaintiffs to recover an amount alleged to be due to them for goods and merchandise sold by them to the defendants. The defendant Redmond in his answer denied that he was a partner in the concern of M. F. Roberts Co. at the time the goods were purchased by Roberts, that firm having been dissolved before that time. On the trial Redmond testified that he told the plaintiffs *484 that the defendants were going out of business and notified them not to sell any more goods after that, and that Redmond Bros. were going out of the firm of M. F. Roberts Co.; but he at the same time explained his statement by saying that he did not know the plaintiffs, and went to the office in Knoxville, Tenn., and "found a man working on the books" and notified him. Upon the evidence his Honor instructed the jury as follows: "If, however, the partnership was dissolved, and the defendant gave notice at the home office of the plaintiffs to (630) one of the plaintiffs' employees that the firm of Roberts Co. were going out of business, and that it was the last bill for which the firm of Redmond Bros. Co. would be responsible, if you find this to be a fact, then the defendant would not be liable for the debt"; and further: "But if the notice was given to Cowan, McClung Co., or to one of their employees in their office in charge of their books, and their subsequent debts were made without his knowledge or consent, then Redmond would not be responsible, and your answer would be to the first issue `No.'" These instructions were erroneous.
The notice should have been given to the plaintiffs or to some one of their employees who had charge of their credit department. The "man" the defendant Redmond found "working on the books" may have had no duties connected with any department of the business, except to keep an account of the cash, so far as we know. Of course, if any salesman had been notified of the dissolution of the firm, and that salesman had afterwards sold goods to Roberts, Redmond would not have been liable.
New trial.
Cited: Drewry v. McDougall,
(631)
