Haddock, Reed & Co. v. Crocheron

32 Tex. 276 | Tex. | 1869

Lindsay, J.

There is really but a single question presented for our consideration by this record, and that is, can one partner, after a dissolution of the partnership, by a novation general, or by a new engagement with his creditor, in consideration of being discharged and released from a liability, contracted during the existence of the firm, bind the retired partner by such new engagement or new obligation ? This is not now an open question in this State. In Speake v. White, 14 Tex. R., 368, it was decided that “ the acknowledgment of an antecedent indebtedness by one partner, after dissolution, did not bind the firm.” In White v. Tudor, 24 Tex. R., 641, it is even held, that a general authority to one partner, after dissolution, to settle the business of the firm, does not warrant him to “give a note in the name of the firm for a firm debt, or to> renew one given before the dissolution.” This general conclusion, and these authoritative decisions, upon the vital point in this case, supersede the necessity of investigating the propriety of the exclusion of the testimony in relation to the entries in the books of the creditor. For the proof, if it had been admitted, would only have conduced to prove that the partner had executed new notes, after dissolution, for an existing obligation of the firm, which would not be binding upon the retired partner, according to the decisions of this court. JSTor does the fact of the want of knowledge of the dissolution in the creditor, up to the time of the giving of the new obligation, alter the force and effect of this new arrangement, since the knowledge was necessarily brought home to him, at the time of the arrangement, by the contracting partner’s signing the firm name “ in liquidation.” The judgment of the District Court is, therefore, affirmed.

Affirmed.

Lindsay, J.

The court has carefully examined the ground for a rehearing in this case. The judgment of the court below was affirmed, because the notes, executed in the name of a firm by one partner, after dissolution, did not bind the retired partner. But a rehearing is sought, because by an amended petition of the plaintiff, filed June 9, 1868, the plaintiff sought to recover on the original cause of action. The statute of limitations was relied upon in the amended answer. The statute of limitations having begun to run upon the original cause of action, was not arrested until the filing of the amended petition. The original note was executed on the 23d of February, 1851. The amended petition was filed the 9th of June, 1868.' Then, abstracting the time between the 2d of March, 1861, and the 2d of September, 1866, the full period of four years had elapsed before the institution of the suit; and the statute being relied upon in the answer, this court is bound to treat it as a bar to the action. The application for a rehearing is therefore refused.

Rehearing refused.