Ellison v. . Sexton

Mekrimon, C. J. after stating the facts: Evidence wras produced on the trial to prove that the plaintiffs had knowledge of the business partnership of A. N. Sexton & Co., and that the defendant J. A. Sexton was the solvent member thereof before its dissolution in May, 1884. In the absence of knowledge or notice of such dissolution and the retirement of J. A. Sexton from the firm and its business, and as the other partner continued the business under the firm name, the plaintiffs might reasonably, and they had the right to, infer that the firm continued to exist, and that the retiring member of it was still a member thereof, and responsible for such debts and liabilities as the member continuing the business might contract or incur in the course of the business in the name of the firm, and they might safely act upon such inference. Such continued responsibility of the firm, including that of the retiring partner, rests upon the ground of the negligence of the partners, in that they left the business community in ignorance of the dissolution of the partnership, and thus left strangers to con- *360 elude that it continued, and to have faith and confidence in the partnership named. It rests upon the just principle that, if one of two per.-ons must sutler by reason of a credit given,.he whose act or negligence misled the confidence of the other, and who has been the cause of such credit by his misrepresentation, his negligence or fraud, ought to suffer, and not the other. It contravenes reason and common justice that a person in no default shall suffer loss by reason of the laches and misconduct of another, when one or the other must suffer loss. Gould on Partnership, 248; Collyer on Part., § 530; Story on Part., § 160. A partner retiring from the partnership, in order to relieve himself from further liabilities incurred of the firm, must bring actual notice of such retirement, and of the dissolution of the partnership, home to such persons as have been accustomed to deal with it. It is not essential that such notice shall be given in any particular form — it may be express or it may be implied from circumstances. It must appear, however, with reasonable certainty, that such persons in some way received actual notice. This is so, because established business relations might lead such parties more readily to give the firm credit. Moreover, they are known to the firm, and may be readily, in some proper way, notified. Scheiffelin v. Stevens, 1 Winst. (N. C.), 106. As to persons who had knowledge of the firm before its dissolution, but had not had dealings with it, general public notice, given in any reasonable way, will be sufficient. Evidence of facts and circumstances that, in their nature, connection and bearings, put the ptiblic or particular parties' claiming or complaining, on notice, may be submitted to the jury, with proper instructions from the Court, to prove the required notice. Such notice given in a regular newspaper, of general circulation, published in the city, town or county where the partnership business is carried on, is the usual method of *361 giving information, and may, in ordinary cases, be sufficient, when continued for a reasonable length of time — this depending somewhat upon the nature, extent and place of the business. It is said that the sufficiency of notice thus given might be questioned, in many cases, unless it shall be shown that the person entitled to notice was in the habit of reading the paper. General public notice thus given would not be actual and express notice, but it would be presumptive in its nature, and from it the jury might, under proper instructions from the Court, conclude such persons as had not had previous dealings with the firm. Collyer on Part., §532; Story on Part., §161; Tirjoy v. Spofford, 93 U S. R., 430. It is often difficult to determine what amounts to due and sufficient notice of the retirement of a partner, but the evidence to prove it should be such as would reasonably variant the jury in finding the fact of notice — that the party to be charged with it actually had it, or might, by reasonable diligence, have learned of the dissolution of partnership and the retirement of the partner sought to be charged, from the means and opportunity supplied or afforded for the purpose of giving notice of the same. Generally, the reasonableness of the notice will be a mixed question of law and fact, to be submith d to the jury, under proper instructions of the Court as to whether, under all the attending circumstances of the particular case, it was sufficient to warrant the inference of actual or constructive knowledge of the dissolution. As said above, ordinarily, notice fairly given in a newspaper, generally circulated abroad, and particularly among the business people of the town or city where the partnership carried on its business, would be sufficient as to all persons who had not had previous dealings with the partnership. It is better and safer to give notice in that way, although it might be given in other ways. This would afford business men reasonable opportunity to learn of the dissolution, and, in the course of business, the matter *362 would be generally known and more or less spoken of to business men from every direction. But such publication must be fair and reasonable as to its terms and the number of times it shall be made. If the facts are found or ascertained, the reasonableness and sufficiency of the notice may be a question of law for the Court. The Court must determine that there is, or is not, evidence sufficient to go to the jury to prove notice. In the present case there was evidence of actual notice to plaintiffs of the retirement of the defendant J. A. Sexton from the partnership in question, but there was evidence to the contrary. Whether there was reasonable and sufficient general public notice of it becomes a material question. We cannot hesitate to decide that there'was not sufficient evidence of it to go to the jury. Such notice was published in a daily paper one time, the circulation of which was confined mainly to the city of Raleigh. It does not appear that any one actually saw or read it, whether it appeared in an obscure place in the paper, or what space it occupied. Nothing appeared going to show that the plaintiffs saw the paper, or that they ever heard of the notice in any way. It was shadowy, entirely too slender of itself, to serve any practical or just purpose, especially as the business was continued in the firm name. The Court should, in the proper connection, have told the jury that there was no evidence before them of general notice, and, as he failed to do so, there is error. The plaintiffs are entitled to a new trial, and we so adjudge. Error.