Perry v. Britt-Carson Shoe Co.

Beck, J. (After stating the facts.) The notes held by the plaintiff Tyére signed by one of the partners, Perry, in the name of the partnership, Turner. & Perry. And it is contended by counsel for plaintiff in error that the waiver contained in the notes will not prevent the members of the firm from claiming an exemption out of their individual property. As applied to Turner, this contention seems to be well taken. "One partner can not waive the other’s: right to take a homestead out of the individual property of the latter.” Giles v. Vandiver, 91 Ga. 192. But as to Perry, who signed the notes in the firm name, another rule prevails. A ease involving this same point was adjudicated by the 'Supreme Court of Alabama, where it was held that, "The note containing such waiver being signed by one partner in the partnership name, without authority of his copartner, the waiver was effectual against him and his individual property, though it does not bind his copartner.” See also, in this connection, Lippman v. Annis [562] ton National Bank, 120 Ala. 123, 74 Am. St. R. 28; 22 Am. & Eng. Enc. Law (2d ed.), 153; 18 Cyc. 1452. Tbe plaintiff did not prove its claim in the court of bankruptcy, and it is -admitted in the agreed statement of facts that the indebtedness of the firm of Turner & Perry greatly exceeds its assets, which are being administered by the court of bankruptcy. There is no partnership property, therefore, against which the plaintiff can proceed either in law or in equity. This, then, gives the plaintiff a right to rely upon the separate property of the partners for the payment of their notes. 'Civil Code, §2627. The defendant Perry, one of the partners, has $1,400 worth of property set apart to him, as an exemption, out of his separate property. And, as we have seen above, he has waived that exemption as against the payment of these notes. This being established, the rulings in Bell v. Dawson Grocery Co., 120 Ga. 628, are controlling in the present case; and therefore we hold that the court committed no error in granting the injunction as prayed. Judgment affirmed. All the Justices concur, except Holden, J., who did not preside.