114 Ga. 662 | Ga. | 1902
This was application for injunction, filed by Murphey against Tucker, and the allegations of the petition were in substance as follows: The parties had been engaged in the mercantile business as partners under the firm name of J. E. Tucker & Company. The firm was dissolved by the plaintiff selling his interest to the defendant, who took charge of the business and agreed to pay all of the debts of the firm and to relieve the plaintiff from liability on such debts. The defendant has failed to pay the debts of the firm, and there are two suits pending on debts due by the firm. The defendant is selling or attempting to sell all of his property and preparing to move beyond the limits of the State; and upon information and belief it is charged that he has sold out his interest in the mercantile business, and the same has not been paid for, and unless restrained he will dispose of all of his property and leave the State. Plaintiff will be responsible for such portions of the debts of the firm as -remain then unpaid. The prayers of the petition
There was no equity in the petition which authorized the granting of an injunction. If the defendant was actually removing, or about to remove, beyond the limits of the county, or was causing his property to be removed beyond the limits of the State, an attachment might issue against him at the instance of the jplaintiff for whatever sum was necessary to discharge the debts of the firm which the defendant had failed to pay, as he had contracted to do. Civil Code, §4510. The contract entered into between the plaintiff and the defendant at the time the firm dissolved was one by which the defendant obligated himself to pay the debts of the firm, and in such a case there is a breach of the contract whenever the partner agreeing to pay the debts fails to do so, and the outgoing partner can maintain a suit without having paid anything himself. The rule is otherwise when the contract is simply one of indemnity, or to hold the partner harmless; in which case no right of action arises in favor of the outgoing partner until he has either paid voluntarily or been compelled to pay debts against the payment of which he had been indemnified. 1 Bates, Part. § 239 ; 2 Id. § 636. See, in this connection, Harvey v. Daniel, 36 Ga. 562. According to the allegations of the petition, the defendant assumed all of the obligations of the firm and agreed to pay its debts. Such being the case, the moment he failed to pay any of the debts when they became due and payable the.plaintiff had a right of action against him on the contract, and could bring suit to recover, as damages for the breach of the contract, whatever sum was necessary to protect him from liability on account of the debts which the defendant had failed to pay. This being true, under the allegations of
But even if the contract of dissolution was such as not to authorize an immediate suit, either by attachment or otherwise against the defendant, if he was seeking to remove beyond the limits of the State, the remedy of the plaintiff was not an application for injunction, but for a writ of ne exeat, which the code declares will issue to restrain a person from leaving the jurisdiction of the State, in favor of a partner against his copartner equally or partly responsible with him for any duty to be performed, or at the instance of any person legally or equitably interested in property about to be removed, where no adequate remedy is afforded at law, provided the applicant for the writ will show that he has no adequate remedy at law, and that the defendant is either removing or about to remove, beyond the limits of the State, himself or his property, or the specific property to which the applicant claims title or in which he claims an interest. Civil Code, §§4886 — 7. See also, in this connection, Reed v. Barber, 110 Ga. 524. In cases where the writ of ne exeat is applicable as a remedy, the party entitled to the issuance of such writ is not entitled to an injunction. Bleyer v. Blum, 70 Ga. 558 (1), 562. See also Old Hickory Co. v. Bleyer, 74 Ga. 201 (1h), 209. If the defendant is about to remove himself beyond the limits of the county, his property is subject to attachment at the instance of the plaintiff. If he is about to remove his property beyond the
At the hearing objection was made by the defendant to the attorney representing the plaintiff appearing in that capacity, for the reason that 'the attorney had represented the defendant in a matter relating to the' sale of the stock of goods in which he had acquired the interest of the plaintiff when the firm was dissolved, and that facts alleged in the petition came to the knowledge of this attorney on account of this relationship of attorney and client having existed between them. Of course, nothing is better settled than that an attorney who acquires knowledge of the affairs of another pending the relationship of attorney and client between them can not use such knowledge afterwards to the detriment of his former client. An attorney who has been on one side of litigation will not be allowed to take a position in subsequent cases where the knowledge derived from his former client might be used to the
Judgment reversed.