4 Colo. App. 111 | Colo. Ct. App. | 1893
delivered the opinion of the court.
Kate Tootle, W. E. Hosea, H. W. Wheeler and Joshua Motter, copartners as Tootle, Hosea & Co., merchants at St. Joseph, Missouri, brought their action against the defendants, John Davis and Thomas W. Cook, copartners as Cook &' Davis, merchants, doing business at Trinidad and El Moro, ■ Colorado, to recover a balance due from the defendants for
The defense set up by Cook is, that on March 5,1888, himself and Davis were copartners under the firm name of Cook & Davis; that”on that day the copartnership was dissolved by mutual consent; that in the dissolution, for a valuable consideration, Davis assumed the firm’s indebtedness to plaintiffs ; that the plaintiffs were promptly notified of the dissolution, and of the assumption by Davis of the indebtedness ; that after such notice the plaintiffs, on April 27, 1888, made their draft on Cook & Davis for the balance then due, payable to their own order, five days after sight; which draft was sent to the First National Bank of Trinidad for collection, and was on April 30,1888, accepted by Davis ; that such acceptance was received by plaintiffs in full satisfaction and discharge of the indebtedness; and that on April 27, 1888, the plaintiffs, for a valuable consideration, entered into a contract with Davis, by which, without the consent of Cook, they extended the time of payment.
It is shown by the evidence that the defendants, during-the existence of their partnership, conducted two stores— one at Trinidad, managed by Davis, and one at El Moro, managed by Cook; that this indebtedness was contracted on account of the Trinidad store ; and that, by the terms of their
On April 9, 1888, the plaintiffs received the following letter:
“ Trinidad, Colo., April 3rd, 1888.
“ Tootle, Hosea,
“ Gents: — Your statement to hand yesterday and find correct, if you be kind enough to wait until the 25th of this-month, will remit, as we had contract with the railroad company for ties and haven’t received our money yet. You can charge interest and we are willing to pay it.
We are truly,
Cook & Davis,
By J. D.”
To this letter the plaintiffs replied as follows:
“ Cook & Davis, Trinidad, Colorado.
“ Gents: — In reply to yours of the 5th inst. asking us to wait on you until the 25th of April for balance past due on our account, saying you would pay interest from the time after maturity of bills, we will cheerfully comply with your*114 request. Please let your payment come promptly on April 25th, and much oblige,
Yours truly,
Tootle, Hosea & Co.”
On the 27th of April, 1888, the indebtedness being unpaid, the plaintiffs drew on Cook & Davis at five days sight for $2,618.94, the amount due, and sent the draft to the First National Bank of Trinidad for collection. The bank presented the draft to Davis, who accepted it individually. It was not presented to Cook, because he was absent at El Moro. The bank retained the draft, and payments were made upon it from time to time by Davis, which were by the bank forwarded to plaintiffs as payments on the draft, without stating by whom made. The bank had knowledge of the dissolution. After the draft was sent, several letters were written by plaintiffs to Cook & Davis, urging 'its payment. Subsequent to the dissolution, Cook dealt with the plaintiffs in his own name, and paid them for goods purchased, by his individual check. The letter from Cook & Davis, asking time, and promising interest, was written by Davis without the knowledge of Cook; and he knew nothing of plaintiffs’ reply, or of the draft, or its acceptance by Davis. After he had terminated his partnership relations and sent a notice of the dissolution to plaintiffs, Cook gave the subject of this indebtedness no further attention.
The contention on behalf of defendant Cook is, First: That the bank with knowledge of the dissolution of the firm, by presenting the draft to Davis, taking his individual acceptance, and failing to repoi't it to the plaintiffs as dishonored, made the draft its own, and became liable therefor to plaintiffs ; and that the indebtedness of Cook & Davis was discharged by Davis’ obligation to the bank;
Second: That the bank was the agent of the plaintiffs, so that its acts and its knowledge in the premises were the acts and knowledge of plaintiffs, and bound them; and that therefore when' the bank, with knowledge of the dissolution, took
Third: That the agreement of the plaintiffs giving Davis an extension until April 25th in which to pay the debt, in consideration of the promise of Davis to pay interest on the amount, was a discharge of Cook, on the hypothesis that by the dissolution of the partnership and the assumption by Davis of the debt, the relation of principal and surety was created between Cook and Davis;
Fourth: And based upon the same hypothesis, that making the draft payable five days after sight was such valid extension to the principal debtor as to relieve the other.
It is true that the bank to which the draft was sent might have been so negligent in the performance of the duties with which it was charged as to incur a liability to plaintiffs; and if, through its negligence in making the collection, or not reporting to plaintiffs matters concerning it, which they were entitled to know, the debt had been lost, the amount would have been recoverable against it by the plaintiffs as damages; and after payment of the amount by it to them, their claim against the defendants would have been extinguished. The bank would in such case be subrogated to the plaintiffs, and their controversy with the defendants would be transferred to the bank. But, until payment of the claim, or a disposition of it satisfactory to the plaintiffs, defendants remained the debtors of the plaintiffs, and liable to them for the debt. Defendants purchased the goods; by the purchase plaintiffs became entitled to demand payment from them of the purchase price, and no act of theirs, or of the bank, to which plaintiffs were not parties, or to which they did not give their assent, could divest them of that right.
There is no question that the bank was the agent of plaintiffs, and hence the argument that when it took the individual acceptance of Davis upon the draft against Cook & Davis, with knowledge that the firm of Cook & Davis had ceased to exist, the plaintiffs were bound by its act,'the effect of which, as urged, was to discharge Cook. The mere taking
These goods were sold on the credit of the firm, and the firm comprised both the defendants. Nothing which took place between themselves after the sale could alter the obligation which they had contracted. Their contract of dissolution was binding inter se, and each could enforce it against the other; but no rights of third parties which had vested before the dissolution could be at all affected by it, without their own consent. Where one of the partners takes the assets and assumes the indebtedness, creditors may, of course, if they choose, become parties to the agreement; and if they do, for a consideration, they will be bound by it, and cannot sue the retiring partner. There is in such case something like a novation. The firm debt is discharged, and a new one created. The assent to the agreement need not be express. It may be inferred from acts which cannot be explained
jReversed.