Nicholson v. Moog & Co.

65 Ala. 471 | Ala. | 1880

SOMEBYILLE, J.

— The evidence in this case, as disclosed by the bill of exceptions, shows, that the appellant, W. J. Nicholson, was carrying on a grocery business in Garland, Alabama, about the first of January, 1874, and that the appellees were merchants doing business about the same time in Montgomery, Alabama. There had been no dealings between the parties, prior to the transactions involved in this suit, though there had been some correspondence between them by letter. In the latter part of February, 1874, the appellant abandoned the mercantile business, and turned it over to his brother, J. M. Nicholson, who continued to carry it on in the appellant’s name, and under authority of the same licenses granted to appellant by the State and the United States. This was done with the knowledge of appellant, and without objection on his part. He gave no notice of his withdrawal from business, by publication or otherwise. The goods for the price of which this action was brought, were purchased in appellant’s name, but without his direct authority. He made some payments on the account to appellees, and afterwards promised their attorney to pay it, though at the same time repudiating the authority of his brother to bind him by the purchase.

We think the same rule should apply in cases of this character, as to a retiring partner, each resting upon the same basis of implied agency, or of estoppel en pais. A notice by public advertisement, in a usual way, and to a usual extent, which is commonly designated in the books a “ notice to the world,” is sufficient to protect a retiring partner against new customers, with whom he has had no previous dealings. But, persons who have had such actual dealings, must have notice of dissolution, specially addressed, or personally communicated to them ; or, at least, adequate means of knowledge of the fact. — Mauldin v. Br. Bank of Mobile, 2 Ala. 502; Parsons on Part. 412-13. Where the retiring partner consents, whether expressly, or by culpable silence, it matters not, for the business to be carried on in his name, and gives no notice of dissolution, he is still responsible for the debts contracted by the old firm, with one ignorant of the dissolution. — Parsons on Part. 414; Amidown v. Osgood, 24 Vt. 278; Conro v. Iron Co. 612 Barb. 56. This rule is based on the soundest legal reasons, as well as upon that high morality and honesty which courts of justice should delight to encourage in all commercial dealings and other transactions.

The charge of the Circuit Court, drawing a conclusion as to the appellant’s liability, upon the hypothetical facts stated, unless he gave “ notice to the world of his withdrawal,” was erroneous. But, as the evidence clearly shows there was no* notice given, either by public advertisement “ to the world,” or of any other kind personally, to the appellee, it was error without injury, and does not work a reversal in this court.

If, under the circumstances of this case, the goods were shipped, the defendant might have been liable, although they were not received. Hence, the second charge requested by appellant was properly refused.

There is nothing in the other rulings of the Circuit Court opposed to the principles of law as above enunciated, and the judgment is therefore affirmed.