Norman v. Jackson Fertilizer Co.

79 Miss. 747 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

In 1898, Earnes, Dale, Norman, and Long were commercial partners under the firm name of Earnes, Long & Oo. On the 4th of May, 1898, said firm executed its note for $1,551.25, payable to Jackson Fertilizer Company on the 1st of December, 1898. In January, 1S99, said firm was dissolved by consent, and by Norman and Long selling their interest to Earnes and Dale, who continued business under the style of Earnes & Dale, and who received all the assets and assumed all the liabilities of the old firm of Earnes, Long & Oo. In 1900 Earnes & Dale were adjudicated bankrupts, and thereafter, this note not being paid, the appellee sued Norman and Long thereon, and had judgment by peremptory instruction in its behalf. Norman and Long pleaded the general issue, and gave notice that upon the trial they would prove payment, the dissolution of the firm of Earnes, Long & Co., the formation of the partnership of Earnes & Dale, and of the assumption by it, for valuable consideration, of the payment of this note of said dissolved firm, and of all their other obligations; that Earnes & Dale continued to deal with appellee, and contracted debts due to it; that ap-pellee knew of the dissolution of Earnes, Long & Co., and knew of the conditions thereof, and acquiesced therein; that appellee, for valuable consideration, extended the payment of the note here sued on one year beyond its maturity, and thereby discharged defendants from any liability therein; and that appellee received from Earnes & Dale large sums of money, which should have been applied in discharge of the note sued on.

The evidence in the record shows that the Jackson Fertilizer Company knew of the dissolution of the firm of Earnes, Long & Co., but there is nothing to show that they assented to said dissolution, or even knew of the conditions and terms entered into by the parties relating thereto. In consideration that Earnes & Dale would buy entirely their fertilizers from ap-pellee, which they agreed to do, it agreed that the note here sued on should be extended a season; but no change in the security was made. Tbe agreement between tbe partners of Earnes, Long & Go., by wdiich two of tbem took tbe assets and agreed to pay tbe debts of tbe firm, however it may bave operated between themselves, did not change their relation to their creditor, tbe Jackson Fertilizer Company, without its assent thereto given upon a sufficient consideration. As between themselves, Earnes and Dale were, in effect, principals, and Long and Norman were sureties; but as to appellee they all were severally joint debtors and obligors, and as such were equally bound as principal obligors for the payment of the note. Story, Partn., sec. 158; Col. Partn., sec. 556; Harris v. Lindsay, 4 Wash. C. C., 98 Fed. Cas. No. 6, 123; Id., 4 Wash. C. C., 271, Fed. Cas. No. 6,124. The extension of time by appellee to Earnes & Dale for the payment of this note did not affect the liabilities of Norman and Long. The latter were joint debtors and obligors with Earnes & Dale for the payment of the note, and an extension of it was an advantage to all the parties. Notwithstanding the extension, Norman or Long were at liberty to pay the note at any time. They knew, or might have readily ascertained, whether the note was unpaid or not, and might have paid the same. The extension worked no detriment to them, but was a favor altogether. For the purpose of getting payment out of Earnes & Dale, appellee has delayed to press Norman and Long for payment, and of this the latter cannot complain, for by it they suffered no prejudice. Bedford, v. Deakin, 3 E. C. L., 303; Rawson v. Taylor, 30 Ohio St., 389 (27 Am. Rep., 464); Hardware Co. v. Wells, 90 Tex., 110 (37 S. W., 411; 59 Am. St. Rep., 783).

Affirmed.