16 Fla. 339 | Fla. | 1878
delivered the opinion of the court.
The plaintiff below (appellee) declared against appellant'- and Evans, as late copartners under the style of Tate & Evans,. and alleged that they were indebted to him in the sum of one hundred and ten dollars for “ one hundred bushels of chops,” sold and delivered to them, and in the further sum,.. &c., (copamon counts.) Suit was commenced April 26th, 1877. Defendants plead non-assumpsit, and the statute of limitations; that the cause of action did not accrue within four years next before suit. Upon which pleas the plaintiff joins issue. Upon the trial the plaintiff testified that the firm of Tate & Evans, lately doing business at Bluff Springs, Florida, were indebted to him in the sum of one hundred and ten dollars, the purchase money for one hundred bushels chopped corn, sold and shipped to them March 1st, 1872, at one dollar and ten cents per bushel; that it has not been paid; that the firm (by Mr. Evans) has repeatedly promised to pay him within the past four years, verbally and in writing, as shown by Evans’ letters exhibited, dating from July 14, 1873, to November 17,1874. Plaintiff corresponded with Evans, who held himself out'
On cross-examination plaintiff says he only knows of the ...existence of tíre firm by what Evans told him, and has no • other knowledge of the commencement of the partnership • •the corn was shipped to them on the written order of Mr. .Evans, March 1st, 1872; that Evans told him in June, 1872, that such a copartnership existed, and that the busi- ■ ness of the firm was the manufacture of pine lumber by ¡steam power, at Bluff Springs; .the shipment of this corn was the only transaction he had with the firm; that he has . never met Mr. Tate, and does not know him personally.
EL Evans testified that he was superintendent and general •manager of the business of 'Tate & Evans in running a ■ saw mill. In behalf of the firm he purchased of plaintiff -one hundred bushels of chops for the firm March 1st, 1872, and it was used by the firm. There was no notice publicly ■given of the dissolution of the firm. Plaintiff produced three letters signed PI. Evaps addressed to plaintiff; one •dated July 14th, 1873, in which he says:
“ Your favor of a recent date to hand. I very much re- . gret that I am not prepared at present to pay you the amount due by Tate and myself, but feel sure that 1 will be in the course of sixty or ninety days. At. any rate you shall have your money long before you can get it by course of law.”
The next letter is dated at the “ office of Bluff Springs . Lumber Company,” November 28th, 1873. In this he says:
“■ Our mill was suspended some two months since, there being no business and no prospects, but that as soon as we .-begin to saw, any lumber you need or can dispose of I will
The third letter is also dated at the “ office of the Bluff Springs Lumber Company,” November 17th, 1874. In this-he says:
“I will take pleasure in cutting lumber for you, or if you-can still, indulge me I will pay you'the money.”
Walter Tate, in his own behalf, testified that the firm of" Tate & Evans was formed by written articles of copartnership for the purpose of doing “saw mill business,” and no" other; that he did not authorize the purchase of the chops - by the firm, or by Evans; had no knowledge qf the contracting of this debt until a few days before suit; that prior-• to that time no demand had ever been made for payment..- or even notice of its existence had been given either by Evans or any other person. The copartnership began 29th-" January, 1872, and terminated by the terms of the articles-.of copartnership December 31st, 1872.
The articles of copartnership were produced in evidence.. They recite that Tate and Evans have formed a partnership ■ to expire 31st December, 1872, in which it is agreed that Evans is to take charge of the mill business as superintendent of all work connected with the interest at Bluff Springs., for a compensation, and that Tate “shall take charge of thcproeeeds of business at Pensacola, in -the collection of funds due, and see to the proper disbursement of the same until! outstanding dues are settled,” &c.
The judge charged the jury, among other things, “ that notwithstanding the dissolution of the partnership between-Tate and Evans by the terms which limited its duration,, and though the- law is that the promise of one partner after dissolution cannot take a debt out of the statute of limitations against another partner, yet, if there has been no notice of dissolution, such promise to a creditor whose claim ■ accrued during the parthership, and who has not had notice
1st. That unless there is some evidence that the buying of chops was a part of the saw mill business, or that they had a partnership in the mercantile business, then defendant Tate is not liable. • /
2d. That unless there is proof -that-satisfies you that the buying of the chops was within the scope of the partnership proved to he for conducting a saw mill, that Evans has it® power to bind Tate by the purchase of chops.'
3d. That it is not sufficient to bind the partnership that the goods were used for the benefit of the partnership.
The above portion of the charge, and the refusal of the court to instruct the jury as requested, were excepted to, and are assigned as errors. A motion for a new trial on these grounds was denied.
Whether the “ buying of chops ” was legitimately connected with the business of this partnership, (which was formed for the purpose ,of running a saw mill,) is a question eminently proper for a jury to decide. “ Chops” is probably a provincialism, and we conclude from the testimony and the evident agreement of counsel on the subject, that they understood it to mean “ chopped corn.” Beyond this we are left to conjecture. It is- difficult to say-judicially that chopped corn is or is not necessary to carry on a steam saw mill, and yet it may be useful either as fuel, or as food for men and working cattle. It is equally difficult to determine abstractly whether the buying of horses is within the scope of this partnership. . If the jury who tried this case was competent to judge that horses and oxen were necessary or useful in hauling logs and lumber at a saw mill, it was equally competent in them to determine that “ chops,” or chopped cornj was a proper food for the animals, and that the animals required food to • sustain life. But we find no direct evidence that this firm employed any working cattle,
This, together with the refusal of the court to give the instructions asked for by defendant’s counsel, forms the ..■ground of exception and the alleged error. The ruling of the court has reference to the circumstances of the case before it. Evans, the managing partner, had authority to conduct the business, which implied that he had power to purchase such articles as he deemed necessary for the prosecution of the partnership business. He had ordered, in behalf of the firm, an article which he represented he wanted for the use of the firm, and which was afterward actually used in the business of the firm. This was in March, 1872. In June the plaintiff was informed for the first time, so far .as appears, of the general character only of the partnership business. The articles of the copai’tnership had not been ■made public, and the plaintiff knew nothing of them.
In the case of Winship et al. vs. the Bank of the U. S., ip Peters, 529-560,) Chief Justice Marshall, in delivering •the opinion of the court, says : “ That if the particular terms .•of the articles were unknown to the public, they had a right to deal with the firm in respect to the business thereof upon the general principles and presumptions of limited • partnerships of a like nature; and that any special restric- ' tions did not affect them; that in such partnerships it was •within the general authority of the partners to make and
Prom the general principles here .announced, it seems to us that the instructions to the jury were proper and applicable to the facts proved; and it seems further, that however correct the abstract proposition contained in the instructions prayed for, if it could be insisted that the plaintiff had been
Upon the facts of the case, so far as they relate to the purchase of the “ chops,” the plaintiff had the very best reasons for believing that the purchase was made in the due prosecution of the business of the firm. The goods were forwarded upon the order of one of the partners, and this was the one especially entrusted with the business; and this order implied that the “ chops ” were required in the prosecution of that business. This, with the fact further proved by the managing partner, that the article purchased of the plaintiff by him, in the name and for the business of the firm, was actually used in the business, precluded the assumption that it was other than a legitimate transaction upon partnership account, and under any proper instruction the jury could not well have found otherwise.
The other question, and the more important one in this case, is, whether the court erred in charging the jury that a promise by one partner, after the dissolution of the partnership, to pay a debt of the firm to a creditor who had no notice of the dissolution, would bind the other partner. There is no question that a promise to pay by one partner, or a part payment of a debt by one during the existence of the partnership, will be binding upon the others so as to take the case out of the operation of the statute of limitations. 3 Kent’s Comm., Lecture 43.
The question here is, whether a promise to pay by one partner after dissolution, and before the statute has run, will revive the debt, or take it out- of the operation of the statute as to the other partner. The question has under
■ The leading case in England was 'Whitcomb vs. Whiting, (2 Douglas, 652,) decided in 1781, which was an action upon a joint and several promissory note against one of the makers, and it was held that proof of -payment by one of the others of interest on the note and part of the principal within six years, took the case out of the statute as to the defendant who was sued. The whole of the reasoning of Lord Mansfield in that case was this :' “ Payment hy one is payment for all, the one acting virtually for all the rest; and in the same manner an admission by one is an admission by' all; and the law raises the promise to pay when the debt, is admitted to be due.” This case was followed in England for some time without question. Lord Kenyon, however, in 3 Esp. R., 155, expressed some doubts about its correctness ; and Lord Ellenborough, in Brandram vs. Wharton, (1 B. and Ald.,) dissents from the doctrine while feeling bound to follow it. He instances the cáse of thirty or forty persons jointly liable for a debt, which one may actually have paid, yet having lost his receipt he is unable to overcome a promise made by one of the others without his knowledge or consent, and who may not have known of the payment, or who may have intended the very mischief against which it was the evident design of the statute to provide.
In the case of Bell vs. Morrison, (5 Peters, 351,) Mr. Justice Story, delivering the-opinion of the court, says: The reasoning of Lord Mansfield “ assumes that one party who has the authority to discharge has, necessarily, also authority to charge the others; that a virtual agency exists in each joint debtor to pay for the whole, and that a virtual agency exists by analogy to charge; the whole. Now this very position constitutes the matter in controversy. It is true that a payment by one does enure for the benefit of the
Beferring to the case of Wood vs. Braddock, (1 Taunt., 104,) Justice Story, in the same opinion, says: “ The doctrine in 1 Taunt, stands upon a clear, if it lea legal, ground; that as to things past the partnership continues, and must •always continue, notwithstanding the dissolution. That, 'however, is a matter which we are not prepared to admit, •and constitutes the very ground now in controversy. The light in which we are disposed to consider this, question is that after a dissolution of a partnership, no partner can create a cause of action against the other partners except by a new authority communicated to him for that purpose. It is wholly immaterial what is the consideration which is to raise such cause of action, whether it be a supposed pre-existing debt of the partnership or any auxiliary consideration which might prove beneficial to them. Unless adopted by them they are not bound by it.” .
The Supreme Court of New York, Kent, C. J., in Hackley, survivor, vs. Patrick, imp. with Hastie, (3 John., 536,) held that “ after a dissolution of a copartnership, the power of one partner to bind the other wholly ceases. There is no reason why his acknowledgment of an account should bind his copartners, any more than his giving a promissory note in the name of the firm or any other act.” The statute of limitations did not enter into that case, the sole question being as to the power of one partner; who was authorized to adjust the debts due from the copartnership, to bind the others by his admission after the dissolution.
Spencer, J., in Walden vs. Sherburne, (15 John., 424,) referring to the case of Hackley vs. Patrick, says: “ It seems that the Court of Common Pleas in England have held otherwise, (1 Taunt.,) but I believe there is more safety in the rule of this court than in a contrary one.” The same rule was applied in Baker vs. Stackpole, (9 Cowen, 420,) and it was held that the admission of one partner, either of an account or cmy fact, made after the dissolution of the partnership, is not admissible as evidence to affect any other member of the firm.
In the New York Court of Appeals, Van Keuren vs. Parmelee, 2 Comst., 523, in a case where a promise was made by one partner nine years after the' partnership was dissolved, and four years after the statute of limitations had fully run, to pay a note of the firm, Bronson, J., delivering the opinion of the court, says : “ In reference to the statute of limitations, a distinction has sometimes been taken between a promise made before the statute has run and one made after the parties have been exonerated by the lapse of time. That would sustain the defence in this case; for the
The decision in Whitcomb vs. Whiting is said to have been in direct conflict with Bland vs. Haselrig, (2 Yent., 151,) which was decided ninety years before, and in the English cases that have followed, and in some of the early American cases, the same rule was applied, whether the new promise was made before or after the statute had run. “ The case of Whitcomb vs. Whiting (says Judge Bronson) has been several times questioned in England, and in Atkins vs. Tredgold (2 B. & C., 23,) the court seemed much disposed to disregard it. But the authority of a great name has proved more than a match for common sense.” The learned judge reviews the cases in New York, beginning with Smith vs. Ludlow, 6 John. B., when the statute of limitations was in bad repute, and when few men ventured to think for themselves after Lord Mansfield had spoken, and shows that the courts of that State have been constantly struggling against the arbitrary rule of the judicial Warwick of England, until it has been entirely overthrown, and the Supreme Court of the United States sanctions the emancipation. A still later case in New York was that of Shoemaker vs. Benedict, 11 N. Y., 176, where payments were made by one of several joint makers of a note before the statute of limitations had run upon it, and it was insisted by the plaintiff that this payment took the cáse out of the
In Tennessee, 7 Yerger, 534 ; 2 Humph., 166; in Pennsylvania, 17 S. & R., 126; 1 Pen. & Watts, 135; 10 Harris, 156; 7 Barr, 433; 71 Penn. St. Rep., 208 ; in Indiana, 2 Blackf., 371; in Illinois, 59 Ill., 524; it is held that a promise by one partner, after the dissolution of the partnership, to pay a note made by the firm, or pay a debt of
In Georgia, Dudley, 138 ; ib., 100 ; in North Carolina, 2 Hawks, 209; 5 Ired., 341; 45 Mo., 365; 51 Mo., 31; 35 Conn., 299; 36 ib., 270; it seems that a promise by one partner after dissolution, and before the bar of the statute has attached, is held to bind the other late partners.
Our statute of limitations (Laws 1872, ch. 1869,) declares, sec. 1, that “ civil actions can only be commenced within the periods prescribed in this act after the cause of action shall have accrued.” Sec. 10: “ Actions other than those for the recovery of real property can only be commenced as follows: * * Within two years, first, * * second, * * third, an action on an open account for goods, wares, and merchandise sold and delivered, and an action for any article charged in a store account, shall not be barred until four years.”
The issue in the case at bar is whether the cause of action accrued within four years. The declaration does not state when it accrued. The replication takes issue upon the plea. This cause of action accrued when the “ chops ” were shipped by the plaintiff to the defendants upon their order, or it “ accrued ” upon the promise of the defendant Evans, contained in his letters, or upon the promises made by him verbally within the past four years. What the language of the verbal promises was does not appear. Evans’ first letter (July 14, 1873,) regrets that “I am not prepared at present to pay you the amount due by Tate and myself, but feel sure that I will be in the course of sixty or ninety days; at any rate, you shall have your money long before you can get it by course of law.”
The next letter dated at the office of another mill company of which II. Evans was “ superintendent ” and “ E. O. Elmore secretary,” proposes to let plaintiff have lumber as soon as they “ begin to saw,” in “ liquidation of my indebt
The first letter evidently refers to the indebtedness of Tate & Evans, and so probably do the last two. The first admits an indebtedness by “ Tate and myself,” and he promises to pay in sixty or ninety days; in the last two he promises to pay in lumber or in money as soon as he can get it.
During all this time the plaintiff never once calls upon Tate for payment, though Evans always fails to pay according to his promise, and never seeks Tate in any way, and ■does not know him in person, and leaves him in ignorance that any such indebtedness ever existed against him until five years have elapsed after the accruing of the debt, and the obligation to pay it. This cause of action accrued, so far •as the firm is concerned, March 1, 1872.
Did any cause of action accrue as,.to both defendants at any other time ? “ Each partner may bind the partnership by his contracts in the partnership business, but he cannot bind it by any contracts beyond those limits. A dissolution, however, puts an end to the authority. By the force of its terms it operates as a revocation of all power to create new contracts, and the right of the parties as such can extend no further than to settle the partnership concerns already existing, and to distribute the remaining funds.”
The court further says (in Bell vs. Morrison) that this point came before the.twelve judges in the case of Hyling vs. Hastings, (1 Lord Raymond, 389, 421,) in the time of Lord Holt. There, one of the points was whether the acknowledgment of a debt within six years would amount to a new promise to bring it out of the statute ? and they were
The new promise relied on is a new contract upon which the action is based, when it is sought to sustain it by evidence of a new promise, when, but for the new promise, the action would have been barred by the statute. Green vs. Crane, 2 Lord Raym., 1101; Dean vs. Hewitt, 5 Wend., 257; Tompkins vs. Gardner, 1 Denio, 247.
Best, C. J., in Scales vs.* Jacob, 3 Bing., 329, says : “ In none of the cases has any distinction been made as to the time of the promise, whether before or after the six years ; but it is clear that after the six years the plaintiff has no cause of action except on the new promise, and that being conditional, the condition attached to it must be observed.”
The statute operates upon the remedy. The debt always exists. An action brought after the lapse of six years upon a simple contract, must be upon the new promise, whether the promise was before or after the lapse of six years, express or implied, absolute or conditional. The same authority is required to make the promise before as after the six years have elapsed. Shoemaker vs. Benedict, 11 N. Y., 186.
Angelí, in his work on Limitations, (Chap. 20, Sec. 25,) says “ After collating and reviewing the cases in England and in this country, that the point to be resolved in all cases is, whether the promise is a mere continuation of the original promise, or whether it is a new contract, springing out of,, and supported by the original consideration. It clearly ap
The doctrines held by the courts at an early day, and soon after the enactment of the statute of limitations, that a mere acknowledgment that a debt was not paid or satisfied implied a promise to pay it, is not sustained upon any sound principle. The statute does not proceed upon the theory that after the period of limitation the debt was presumed to be paid, but it was designed as a measure of repose operating upon stale demands. The statute does not declare that if suit is not brought within four .years, the demand is presumed to be paid. The presumption of payment arose upon specialties after twenty years, but the statute of limitation declares that “ civil actions can only be commenced ” within the prescribed period after, cause of action accrued. Proof by the acknowledgment of the debtor that a demand is not satisfied, is not more satisfactory than other convincing evidence of the fact, and yet it was never held that such other proof that a claim had not been paid, or otherwise liquidated, draws after it the presumption or implication of a promise to pay, and thus create a new right of action. Why, then, should proof of the fact of nonpayment by an admission of the party be anything more than evidence of the fact; - and upon what principle can it be said that one mode of proof draws after it consequences which _ do not follow the other mode % We cannot discern in the admission that there was a debt due “ by Tate and myself” anything more than the fact that the debt was then due. No, promise is implied. To imply a promise from mere evidence that the demand is not satisfied, would be a bald judicial repeal of the statute, and a nullification of its purposes. The Legislature does not say that the action can only be commenced within four years, unless it be shown
In a suit upon a simple contract, the plea was that the suit was not commenced within a given time after the cause of action accrued, the statute operating as a bar to the suit, because the suit was forbidden by its express terms. The “ cause of action ” must then be some fact occurring within the time limited.
The action of asswnpsit is upon promises expressed or implied. A promise to pay a debt, if made within the statutory period before a suit is commenced, is a cause of action, the thing purchased being the consideration of the thing promised, and this is equally the case whether the promise be made on the day of the purchase, or after five years have run—there is no difference ; the action must be upon the promise.
All the cases declare that it is the new promise that avoids the operation of the statute, and is the contract upon which, if at all, a recovery can be had. The promise is, therefore, the “ cause of action,” upon which the plaintiff must rely to maintain this suit.
Evans’ letter of July 14, 1873, says: “ I very much regret that I am not prepared at present to pay you the amount due by Tate and myself, but feel sure that I will be in the course of sixty or ninety days.” This is the only occasion on which Tate’s name is mentioned in the evidence of admission or promises. All the promises to pay are by Evans’ alone, and in the first person. He does not say that the firm of Tate & Evans will pay, but “ I will pay.” He does not promise in the name, or in behalf of the firm, but in his own behalf; and it seems the plaintiff relied on him
This power to wind up the affairs of the partnership does-not include the creation of evidence of each other’s indebtedness.
In the case of the National Bank vs. Norton (1 Hill, N. Y., 572,) it was held that one partner could not, after dissolution, bind his copartners even by the renewal of a partnership note; nor would a power reserved to him in the articles of dissolution to settle the business of the firm, and for that purpose to use their name, enable him to so bind his copartners. We cannot, upon any theory that seems to be well founded, find any authority in one partner, after dissolution, to change in any manner the legal liability of his late co-partners, otherwise than by paying and adjusting the liabilities of the firm, and thus releasing them. But it was said in the plaintiff’s brief and argument that because plaintiff had no notice of the dissolution, therefore the partnership continues as to the plaintiff. It is true that where partners have dissolved their relation, third' persons who have had transactions with them will be protected in future dealings, with the partners on account of the firm, unless such third persons have actual or constructive notice of the dissolution. But this applies to future dealings only. As to past transactions the partners remain as they were, debtors, equally liable to pay as though the dissolution had not taken place,. (Story Bart., §334, and citations; Collyer on Bart,, §546, 3d
The judgment as to the appellant is reversed, and a new trial awarded.