3 Ga. App. 251 | Ga. Ct. App. | 1907
The plaintiffs in error filed a petition against .Folsom Brothers as a partnership, to recover the sum of $20'0, which they alleged was due to them on an oral promise made December 12, 1905. The defendants had been adjudged bankrupts on a voluntary petition. A composition proposed by them was confirmed by his honor Judge Emory Speer of the southern district of Georgia, on the same day that the promise to pay the $200 is-alleged to have been made. Attached to' the petition, as a part thereof, is a statement of account evidencing a prior indebtedness by the defendants to the plaintiffs and the receipt of a payment thereon, dated January 6, 1906. The petition contained two counts
The defendants demurred generally to the petition, as setting forth no cause of action, .and by amendment further demurred as follows: (1) “The said petition fails to set forth when said money was to be paid.” (2) “The contract was indefinite and not specific enough to be capable of enforcement.” (3) “The petition fails to show that the bankruptcy proceedings did not dissolve the previously existing copartnership of the defendants.” (4) “There is no specific allegation in said petition set forth, that the said partnership is now in existence, or that the same was not lawfully dissolved by said bankruptcy proceedings.” In response to the demurrer the plaintiffs amended their petition by alleging that the $200 promised to them by the defendants was to become due, $100 on April 12, 1906, and the other $100 on August 12, 1906; 'and by alleging that the bankruptcy proceedings did not dissolve the partnership existing at the time of said adjudication of' bankruptcy, .but, on the contrary, each of said partners signed a. joint contract borrowing the money with which to pay said 20% in composition, and immediately and continuously thereafter continued to do business as partners under the same name and style as-before. Upon the hearing on the demurrer the court sustained the same and dismissed the petition as amended, with a proviso in the order of the court that the judgment is not to be a bar against the plaintiffs suing any of the individuals composing the firm off Folsom Brothers as may have revived the debt as to himself, if there be any. . ,
The pivotal question in this case is whether the bankruptcy proceedings dissolved the partnership. If they did not, and the allega
When the United States court has before it the question of confirming a composition, it is presumed to have before it the only offer which has been made by the debtor, and that there are no propositions, conditions, or underground dealings hidden from the court. Were the contrary true, the court would never know when it was proper and just to confirm a composition. Justice, which is sometimes pictured as being blind, but which is always impartial, instead of being upon solid ground, would at any time be likely to topple and fall into the subterranean depths of private •contrivances which would be neither just to the creditor nor reputable to the court. Great stress is laid by counsel for plaintiffs ■and defendants respectively on the point of time when the plaintiffs receivéd the 20% from the composition. Counsel for defendants in error is in error in stating that the plaintiffs had accepted the composition and had the composition money in their pockets .at the time of their objections to the composition. The record confirms the statement of the counsel for plaintiffs in error that the alleged promise was made on December 12, 1905, and the plaintiffs’ portion of the proceeds of the composition, as shown bjr the statement of account attached to the petition, was paid to them .January 6, 1906, following. This point, as well as some others which are the occasion of much unseemly acrimony in the briefs, we deem wholly immaterial. Counsel for both parties, so far as results are concerned, could well have afforded to have argued the case in a manner more respectful to the dignity of this court and in accordance with its rules. We forbear at this time to take further notice of the highly improper personal allusions on the part of each counsel with reference to the other, other than
It does not appear that there was. any consideration for the promise of Folsom Brothers to pay Meinhard, Schaul & Company the $200. If the promise was made before the final discharge effected by the confirmation of composition, the transaction is outlawed for the reasons we have stated, and the consideration avoided. Nor does it appear that the promise, if voluntarily made after the discharge, was in writing. An individual debt can be revived by a subsequent promise. The consideration is found in the fact that the debtor had, at a time previous, owed the creditor a just indebtedness. But in the present case, according to the allegations of the petition, a partnership debt is sought to be revived. That an individual partner can revive his obligation for a partnership indebtedness has been held in Weatherly v. Hardman, 68 Ga. 592; but it is not within the power of an individual member • of a partnership to place upon the firm a liability for a pre-existing debt from which the partnership has been absolved, unless it is specifically alleged that he was specially authorized 4so to do. Each individual constituting the partnership is the keeper of his own conscience, and can only revive debts so as to bind himself. As we have heretofore stated, then, there is really only one question in the case, — whether the proceedings in bankruptcy. dissolved the partnership. If they did, the judgment of the court in sustaining the demurrer was unquestionably right. If they did not, then whether the judgment of the court was right or wrong will depend upon the question whether the demurrer was specific enough to reach the point. It appears to us that the petition did.not set up sufficient ground for the revival of the partnership liability by specifically setting up that all of the members of the partnership personally promised to pay the $200, or that one of them, with special definite authority for that purpose from his copartners, revived the obligation.
The demurrer is called a general demurrer. As pointed out in
The decision in Moore v. Trounstine, 126 Ga. 116 (54 S. E. 810), is not in point; for one reason, because the present case involves the revival of a partnership indebtedness. It is true that “a promise by a debtor to pay a previously existing debt to his creditor, made after the former’s adjudication as a bankrupt but before his discharge, will not be impaired by the subsequently acquired discharge.” But it is also held in the Trounstine case that "the ef
There was no error in the judgment of the lower court.
Judgment affirmed.