Stewart v. Sonneborn

51 Ala. 126 | Ala. | 1874

B. F. SAFFOLD, J.

The issues of this suit, so far as the transcript informs us, became resolved into á question of notice on the part of the appellants (plaintiffs) of the dissolution of the firm of E. Leipzeiger & Co., by the withdrawal of the appellee (defendant) before the debts sued for were contracted. The debtor firm were customers of the plaintiffs before the dissolution ; and afterwards they continued business under the same name, without having given any public notice of the dissolution. The plaintiffs’ witnesses testified, very positively that no personal notice of the dissolution had been given to them. The defendant testified, for himself, that about two weeks after his withdrawal from his firm he went to the storehouse of the plaintiffs, in New York city, and told a person who inquired if he could do anything for him, and who appeared to have and exercise some authority, but who was unknown to him, that he had withdrawn from the firm of E. Leipzeiger & Co. This was all the notice he knew of having been given. Max Gabriel, the book-keeper of Leipzeiger & Co., testified that notice of the dissolution was given to the plaintiffs ; that a written notice was sent to them, but he did not know to whom it was given, nor did he personally send or give notice. E. Leipzeiger and Cohen, the other partners, say they gave no notice to the plaintiffs, and do not know whether any was given or not.

The court refused to give the following charge, asked by the plaintiffs : “ Actual notice of the withdrawal of Meyer Sonneborn from the firm of E. Leipzeiger & Co., to all the persons with whom the ex-partners had dealings in partnership, is necessary for his protection. If this actual notice be not given to the creditors who had dealings with the partnership, Sonneborn, the retiring partner, will be held to the payment of the debts created by his late partners, in the partnership name, after his retirement.” Three or four charges were given, which asserted unequivocally the liability of the defendant, if the plaintiffs had received no notice of the dissolution. We must, therefore, hold the charge quoted to have been properly refused, as incorrect, and tending to mislead the jury. The most patent meaning of it asserts the liability of the defendant, unless notice had been given to all the creditors of his firm.

2. The interpretation of the eleventh charge of the plaintiffs, refused, seems to be, that if the jury find from the testimony of each of the partners of E. Leipzeiger & Co. that neither of them gave notice to the plaintiffs, through any person authorized to receive it, then Max Gabriel’s testimony that notice was given, because E. Leipzeiger & Co. sent it, is insufficient proof of the fact. The fault of this charge is its assumption that no notice from E. Leipzeiger & Co. to the plaintiffs could have been given, except by some one of the partners himself. Gabriel’s testimony, on this point, is very indefinite, and unsatisfactory, but not sufficiently so to authorize its exclusion. If some cleric of the firm, charged with the duty of preparing and giving such notice, had done so, though without the knowledge of the partners, it would be imputed to them. Ten (out of twelve) charges, directly on the matter of notice, affording ample instruction to the jury, had been given by the court on behalf of the plaintiffs. If the verdict is contrary to the law and the evidence, it cannot be set down to insufficient instructions.

3. Proceedings in an action in a state court will not be stayed, simply on the ground that the plaintiffs have taken proceedings to have defendants declared bankrupts. In such case, an order of the court of bankruptcy, adjudging the defendants bankrupts, must be made, before they are entitled to a stay of proceedings. Maxwell v. Faxton, 4 B. R. 60. The continuance required by section 21 of the bankrupt law is “upon the application of the bankrupt,” after adjudication. The 42d section of the act places the party proceeded against in the position of a bankrupt only after adjudication. The bankrupt court has extraordinary powers of injunction, &c., but they must be invoked in that court.

The judgment is affirmed.