Long v. Garnett

1 Tex. L. R. 954 | Tex. | 1883

Delany, J. Com. App. —

The first assignment of error raises the objection to the judgment that, as there was a general denial, it was . necessary for the plaintiff to produce the note, and as that was not done the judgment cannot be sustained. Robinson v. Brinson, 20 Tex., 438..

The rule stated in that case is .well established, but • it simply means that the note itself is the best evidence, and the opposite party may demand that it be produced or its absence accounted for. But if he permit secondary evidence to be introduced upon the trial without objection, he cannot make the objection for the first time upon appeal.

. On the trial below both these appellants were introduced as witnesses for the plaintiff, without objection by them, and upon their-testimony the judgment was rendered. As no objection was made below to the competency of the evidence, the only question which we could consider would be whether it was sufficient to sustain the-judgment. We have no doubt that it was.

The second assignment is so vague that we .do not feel called upon to consider it.

The third assignment is that the court erred in not rendering-judgment against the defendants Edward Long and MoBath upon the cross-bill of appellants.

The authority to which we are referred is White v. Tudor, 32 Tex., 758. The case does not sustain the position of appellants. There the plaintiff recovered against one member of a firm upon a note executed by the other member a few days after the dissolution. The case had in effect been decided in favor of the plaintiff upon the preceding appeal, upon the ground that when the note was executed the plaintiff had no notice of the dissolution. 27 Tex., 584. In the case to which appellants refer, the learned judge merely gives some additional reasons of an equitable character why the judgment should be affirmed.

But the claim here set up by appellants is that they have paid a part, and are liable to pay the whole of a debt due by the firm, towards which the other members ought to contribute. Ordinarily a suit for contribution cannot be maintained in favor of one partner against his copartners during the existence of the partnership. Parsons on Part., 285-87, and notes. But it has been held that-when, after the dissolution of the firm, one of the members has-been compelled to pay a partnership debt, he may, by suit, compel the others to pay their proportionate parts.

Thus, in a case in Pennsylvania, A. & B. were partners. A. made a note in the firm name, and before its maturity the firm was dissolved. Some years afterwards the holder of the note brought suit against A. & B., late partners, and recovered judgment. B., under a threat of execution, paid off the judgment, and brought suit against A. for contribution. It was held that the suit was well brought. Brown v. Agnew, 6 Watts & Serg., 235. The cases seem to hold that there must be an actual payment of the joint debt before one partner can recover contribution. Parsons, p. 287, note s.

We might, perhaps, rest our decision here, as appellants have not, paid the entire debt. But waiving this point, it is clear that the right to recover contribution rests upon the ground that one or more of the partners have discharged an obligation which was binding upon the firm. If, therefore, the court below was correct in holding that the defendants McBath and Edward Long were not bound to pay the note, then appellants were not entitled to contribution. "We will therefore inquire into the correctness of that, judgment.

It is well established, that, after the dissolution of a partnership,, one of the members cannot impose new obligations upon the firm, or vary the character of those already existing. He cannot give a new note in the firm name, or renew one given before the dissolution. White v. Tudor, 24 Tex., 639.

But when a party has had dealings with a partnership, and after the-dissolution, but in ignorance thereof, receives from one of the members a note in the firm name in settlement of a partnership debt,, the partnership will be considered as still existing at the date of the note. Tudor v. White, 27 Tex., 584; Davis v. Willis, 47 Tex. 154.

But it is a question of fact to be found by the jury, or by the-judge in the absence of-a jury, whether the party knew of the dissolution -when he received the note. Tudor v. White, supra Parsons, p. 413, and note.

In the case before us, the evidence of previous dealings between the plaintiff and the firm is vague and indefinite; nearly two years elapsed between the dissolution and the execution of the note, and there ivere some other circumstances from which the court might-come to the conclusion that the plaintiff was informed of the fact. And the court below having passed upon the question of fact, we-cannot by any means say that the judgment is clearly wrong. Stroud v. Springfield, 28 Tex., 677, and cases cited. See, also, Deford v. Reynolds, 36 Pa. St., 325.

Our opinion is, therefore, that the judgment should be affirmed.

Aeeiemed.

[Opinion approved April 17, 1883.]