Nott & Co. v. Douming

6 La. 680 | La. | 1834

Lead Opinion

Bullard, J.,

delivered the opinion of the court.

The decisien of this case seems to have turned in the court of the first instance on the insufficiency of the notice of protest given to the defendant as a member of a commercial firm, by which the note was endorsed. But the pleadings and evidence present other questions upon which we entertain less doubt than on that o.f notice.

iua<mon»dcomi pprtuoi- Cannot neis by enE-' ment. Public notice of *ePaita®reh?p |e?s, but°not mors or others previously dealing with the firm; they are entitled [°.panicular "°" whoa public notice was given ‘^paSreMp ™ento“tiie"n°iM ^Lred^o ™mad¡ Soto intuit which through the agoncy of a broker: ¿cZd that the presumption of notice to the plaintilf is in favor of the defendant and was bound t0 came the exception, by being a customer entitled to particular notice.

The firm of Du Bertrand, Douming & Co. was dissolved on the 3d of April 1833, and public notice given in the Bee and Courier on the following day. On the 7th of May following the note in question was drawn payable to Du Bertrand personally at his domicil, it was endorsed by him, first in his own name and then in the name of the late firm and subsequently came into the possession of the present plaintiffs. The defendant being sued as endorser in his character of a member of the firm, pleads the general issue.

After the dissolution of the firm, it is clear that Du Ber. trand could not bind his late partners by endorsement. Pub-lie notice of such dissolution is good as to strangers who have ° not previsously dealt with the firm, hut not as to its former customers, who are entitled to particular notice, or at least that notice should he brought home to them. Chitty on Bills, 47. 4 Johnson's Rep. 224. 3 Day's Rep. 353. 6 Johnson’s Rep. 144.

It does not appear in evidence whether the plaintiffs had had any previous transactions with the firm, nor does it appear whether they had any knowledge of the published notice. They appear to have become possessed of the note through the agency of a broker, who testified that he had seen the notice of dissolution in the Gazettes but could not recollect at what time, nor could he remember when the note was endorsed.

We are of opinion that the presumption under these circumA xx stances is in favor of the defendant, and that the plaintiffs were bound to show that they come within the exception by showing their previous dealings with the firm before its dissolution. The defendant would then be bound by the act of his partner, unless he showed particular notice to the plain-1 x A tfiís. *

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court he affirmed with costs. J °

Before notice of the dissolution of a partnership to the bolder of the partnership endorsemem, notice of protest to a member of the firm is notice to all the partners. The endorsement of a note which is negociated is equivaleni to drawing a f new bill and when the endorsement is made in the name of a firm, until notification of its dissolution to the holder of the note, he has a right to regard the firm as still in existence as to the demand and notice of protest.

A rehearing was granted in this case on the ground of a mistake in the record as to the date of the note. A true copy was certified as follows: “Fin janvier prochain je payerai a. Monr. P. Du Bertrand, ou ordre, a son domicile o, laNouvelle Orléans, quatorze cent piastres pour valeur reque.

‡ 1400 00 Donaldsonville, 7. Mars 1833”

3d Feb’y 1834.” (endorsed) “ Du Bertrand, Du Bertrand Douming & Co.”

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Rehearing

THE DECISION ON A REHEARING OF THIS CASE.

Bullard. J.,

delivered the opinion of the court.

In this case a rehearing was granted, on the ground that this court had been misled as to the date of the note sued on by a mistake in the copy. It now appears that the note was endorsed during the existence of the firm of Du Bertrand, Douming & Co., it being dated on the 7th of March instead of May. The question therefore to be decided is whether the notice of protest was sufficient

It is insisted by the defendants counsel, that after the dissolution of a commercial partnership, each partner is entitled to a separate notice of protest. We think that most of the reasoning and authorities employed in the first opinion delivered in this case, will still apply under this new aspert of it. Nott & Co. now appear as having had a transaction with the firm and there is no evidence of notice to them of its dis solution. Can a dissolution not notified to them impair any of the obligations of the partners towards them, which arose during the existence of the partnership ? we think not. If the notice would then have heen good, it should be considered sufficient now, even supposing that notice was not given separately to each partner. The engagement on the part of the endorsers was, that if the note was not paid at maturity, they on proof of demand of the maker and due notice to them, would pay the amount of the note. The endorsement was in fact equivalent to the drawing of a new bill. Until notification of the dissolution, the'plaintiff had a right to regard the firm as still in existence as to the demand and notice.

Before °[ “e thpa“ersh“p uL^^Totesfto of the fn-mis no- endol.s. ™ld"lh fsfnag0“‘° JodráwingTiew til" ¿ndoramS™ ofXaiin",untn™tification of its dissolution to tho holder of the note, he has a right to regard it as still tL8dSia “and notloe of Protost-

But the notary certifies that he gave notice to the endorsers respectively in writing. The expression used leaves it rather doubtful whether Douming had notice personally whether the notice to the firm was handed to some other partner of the house. Under the circumstances of the case x we do not consider it material.

The judgment heretofore rendered must be set aside. And it is further ordered, adjudged and decreed, that the judgment of the Parish Court be reversed, and that the plaintiffs recover of the defendant E. Douming, one thousand four hundred dollars with interest at five per cent from the 4th of January 1834, and costs of both courts.