4 Ala. 509 | Ala. | 1842
It is admitted by the counsel for the plain
The material question in the cause is, whether the bill is invalid, because, as alledged, given to discharge the individual debts of a part of the members of the firm, on which it was drawn and without the knowledge or consent of all the members of the firm.
The general principle, that one partner cannot, without the assent of his co-partners, give a security in the partnership name, for his individual debt, is universally acknowledged. [Mauldin v. The Branch Bank at Mobile, 2 Ala. Rep. 502.] That proposition was distinctly admitted Iqr the Court below, in its charge to the jury, in this case — and the case put to the jury upon the implied assent of the new firm to pay this debt.
The facts of the case were, that the defendants in this suit, fifteen in number, were partners, doing business in Tuscaloosa, under the name of Conrow, Ramsey & Co.; in Mobile, under the name of McCown, Hobson, Williams & Co.; and in the
Upon this testimony the Court admitted the 'general rule to be as stated, instructed the jury that if there were large funds in the hands of the new firm, and the new firm tacitly recognized the debt, then the defendants would be liable. That if the old firm deposited sufficient funds in the hands of the defendants, and the same was used by them, then the defendants were liable to pay the bill.
From the proof it appears that the new firm was indebted to the old firm in a sum more than sufficient to pay the amount for which the bill was drawn, and we-can perceive no possible objection to the drawing of the bill, as it was merely a mode of paying a debt which the house owed. The apparent difficulty arises in this case from the fact, that the members of the old firm to whom the debt was due, were also members of the new firm, for if the new firm had been indebted to a stranger, it cannot be doubted for a moment that any member of it, had authority to discharge it by a payment in the money or effects of the firm or by drawing a bill upon its credit. But ah though the new firm was composed in part of the members of the old firm, yet the liability of the former to the latter was as distinct as if the debt had been due to a stranger.
At the time this bill was drawn the Mobile branch of the
That McCown, the acting partner at Mobile, could have drawn the money from the possession of the.firm and paid the debt for which this bill was drawn, cannot be controverted, and is indeed admitted in argument. But on what principle could this be done? On no other than that it was legitimate, because by receiving the money the house became indebted to those depositing it with them, and being a debt due by the firm, any member of it could discharge it.
It was also urged that although there might be cash dealings between the old and new firms, so as to create at a given time the relation of debtor and creditor between the two, that, in the nature of things this balance would fluctuate, and be constantly changing, and that therefore, although the new firm, might be indebted to the old when the bill was drawn, there might be no such indebtedness when the bill matured. But the presumption must be, as the contrary is not shown, that when the bill was drawn, it was carried to the debit of the old firm, and thus extinguished such indebtedness pro tanto. The
We have not thought it necessary to advert to the facts of the case, to establish the proposition that they raised the inference of an implied assent by the members of the new firm, who were not members of the old, to the drawing of this and similar bills in discharge of an indebtedness to the old firm, as was held in the case of Gainsevoort v. Williams, [14 Wendell, 133,] a case in some respects analogous to this, because, we think that this case, when stripped of its extraneous circumstances, is resolved into the simple proposition, whether each of the members of a firm have not the power, by the very terms of the partnership, to discharge its debts by giving a security in the name of the firm, or in any -other manner.
As this is a proposition which cannot be controverted, it follows that there is no error in the judgment of the Court, and it is therefore affirmed.