70 Miss. 202 | Miss. | 1892
delivered the opinion of the court.
The right result was reached in this case. The theory of the defense was fairly put to the jury by the instructions, so far as related to consent of Jones that his tenant might sell. The instructions asked by the defendants as to the partnership between Jones and Worsham, and the right of the defendants with reference to that, were properly refused, because they do not state the rule of law on that subject correctly. They assert that the defendants must have had knowledge or notice of the change of the relation between Jones and Worsham from that of partners to that of landlord and tenant. Not having dealt with Jones & Worsham during the brief period of the existence of the partnership between them, they were not entitled to be specially notified, and the instructions might be construed to require this.
The fifth and sixth instructions asked by the defendants
I was constrained by circumstances, as I think my brethren were, in deciding Cohn v. Smith, but, starting from that, there could be no other goal than that reached.
Affirmed.
Barnett Thompson, for appellants, filed the following suggestion of error:
In its opinion the court says : “ They [the instructions] assert that the defendants must have had knowledge or notice of the change of the relation between Jones and Worsham from that of partners to that of landlord and tenant. Not having dealt with Jones & Worsham during the brief pe
It is true defendants were not entitled to a special notice of the dissolution of the partnership, and, if the instructions are susceptible of this construction, they were erroneous. But we respectfully submit that when the instructions are considered in connection with the testimony, they could not have been misleading. There was no controversy over the kind of notice given. The plaintiff wholly failed to show that notice, either general or special, was given. The necessity, therefore, of defining in the instructions what kind of notice the defendants were entitled to was not apparent to us at the time the instructions were asked.
We proceeded on the assumption that, having shown the existence of a partnership, and a knowledge of its existence by defendants during its life, and their ignoi’ance of its dissolution, the burden of proof was on the plaintiff to show that notice had been given that the partnership had been dissolved. The burden of proof was on the plaintiff. 17 Am. & Eng. Enc. L., 1117, 1118. But did defendants have knowledge of the dissolution ? About this there was a conflict of testimony. And was notice of any kind of the dissolution given, either general or special? The testimony failing to .show that any notice was given, how could the jury have been misled?
The testimony was as convincing that no general notice was given as that no special notice was given. There was an utter want of evidence of either.
The partnership feature of the case was not regarded by us as important, and the instructions on that were remarked upon merely to call the attention of counsel to their inaccuracy, which they admit.
The evidence shows that Worsham was dealt with individ
Denied.