Dunham, Buckley & Co. v. Simon

Walkee, P. J. The evidence establishes the fact beyond controversy, and to which no testimony is opposed, that all of the defendants had been partners together during the fall and winter of 1874-5, and also that during the years 1874 and 1875, they, under the firm name of David Simon & Friedman, had had, as mercantile customers of the plaintiffs, dealings with the plaintiffs, consisting in the purchase of goods by defendants of the plaintiffs, the execution of notes therefor and the payment of the same. It is not pretended that any notice to the plaintiffs was given, or that they knew of the dissolution of that firm before the execution and delivery of the note sued on. .The rule of law in respect to the liability of all the members of the firm which had thus been dealing with the ■plaintiffs previous to the date of the note sued on is clearly stated in the case of Tudor v. White, 27 Tex., 585, as follows: “ That third parties cannot be affected by mere secret and private agreements between the members of a firm, by •which they dissolve their connection, is an elementary principle. When they have'held themselves out to the public as partners, and authorized others to contract and deal with them upon the faith of their joint liability, those who have dealt with them as partners are authorized to act upon the presumption that such relation continues, until notice is ■given of the dissolution of the partnership, or such facts are shown as authorize the presumption that it was known.”, See, also, Story on Partnership, sec. 334. “ The partnership quoad third persons, or in other words the liability of partners quoad third persons, cannot be dissolved without express notice to them, and to the world in general, that the partnership no longer exists. There is an exception to this rule in the case of a dormant partner. If the fact of his being in partnership be unknown to all the creditors of the firm, notice of his retirement is unnecessary; if it be known to a few, notice to those few is sufficient.” Collyer on Partnership, sec. 120. “A dormant partner is he whose name and transactions as a partner are professedly concealed from the world.” Id., sec. 4. [553] The evidence does not show that any of the members of the firm were dormant partners, nor does it appear that the plaintiffs were in ignorance, whilst they dealt with and gave them credit, as to who it was that composed the partnership. Upon the state of facts developed by the evidence on the trial, we are of the opinion that the judgment of the court was ' erroneous and is not supported by sufficient evidence, and therefore should be reversed. In respect to the remaining assignment of errors, that the court erred in refusing to permit the plaintiffs to take as confessed the cross-interrogatories by them propounded to those defendants who filed interrogatories to themselves, it is to be said that their right to do so is predicated upon the statutes, and whether they bring themselves within the provisions of the same or not, so as to exact their demand upon the state of case which is made, need not be determined, because, it is our opinion, that if they were entitled to the same benefits from propounding cross-interrogatories as though they had taken the initiative by propounding to such defendants direct interrogatories, yet, if the latter were in court at the time of the trial, ready and willing to be examined, the purposes of the law would have been sufficiently fulfilled as not to warrant the taking of the interrogatories as confessed. Ratcliff v. Baird, 14 Tex., 47. The statutes which regulate this subject (arts. 3748, 3754-3756, Pas.’Dig.) were enacted before the privilege was conferred by law upon parties to testify in their own behalf, and were in the nature of statutory proceedings for discovery, where the party, interrogating his adversary, selected him as an involuntary witness. Under the law as it now exists, these defendants offered to testify in their own behalf, and, through their counsel, caused interrogatories to be propounded to themselves, which were crossed by the plaintiffs. We will not undertake to decide that they might not, if they had chosen to do so, recant their determination to offer their testimony in that shape. It may well be questioned whether the propounding of cross-interrogatories by the plaintiffs can be deemed such “ an examination of the opposite party as a [554] witness ” as was contemplated by art. 3754, Pas. Dig., but that it had reference to the voluntary selection by a party of his adversary as a witness, at a time when the latter did not stand upon the same footing as to competency as other witnesses. The plaintiffs evidently had the right to obtain the benefits of that statute by making said defendants their witnesses, and propounding to them interrogatories-in-chief; but this course they did not pursue, nor in any wise voluntarily accept them as witnesses in the case, further than they were made such by the law which entitles all parties to testify. [Opinion delivered October 19, 1880.] For the error in the judgment, we award that the same shall be reversed and the cause remanded. Bevebsed and demanded.