Glasscock v. Smith

CHILTON, C. J. — The record nowhere shows that the de* murrer to the third plea was sustained, and if a resort to in-tendment could aid the appellee in sustaining the judgment, we should presume the demurrer was withdrawn or abandoned. But this done, the plea remains, and must be considered as tendering one of the issues which the record shows were tried by the jury. Then comes the proof, which conduces to support it, and the charge which was refused, as applicable to it, forcing upon us the same question presented by the plea and demurrer. In this posture of the case, we have no alternative but to come to the question, — Did the delivery by Dent, the survivor, of the note, then assets of the firm, which Fontaine before his death had endorsed in the name of the firm, vest the legal title in the plaintiff ? We are of opinion it did not. The death of Fontaine, ipso facto, dissolved the firm (Collyer on Partnership, §118); and upon such dissolution, the surviving partner became tenant in common with the personal representative of the deceased partner, of all the movable stock and effects of the partnership, charged with the duty of so administering them as to reduce them to money, pay off the debts, and, having accomplished the purposes of the partnership, to turn over to the representative the share of the surplus to which the deceased, if living, would have been entitled. His duty is, to close and adjust the business and affairs of the partnership. He has no power to bind the firm by any new contract. He cannot endorse or transfer the partnership securities to third persons, or in any other way make his acts the acts of the partnership. In short, he can do no act, and make no disposition of the partnership effects, inconsistent with the primary duty devolved upon him of winding, up the whole concerns of the partnership. — Story on Part. § 822, and cases cited in note 1; Lang’s Heirs v. Waring, survivor, 17 Ala. 145; Sanford v. Mickels & Forman, 4 John. 224; per Lord Kenyon, in Abel v. Sutton, 3 Esp. Cases 111. The attempted transfer, in this case, was in the name of the firm of Fontaine & Dent. The endorsement of that name by Fontaine, the note not having been negotiated before his death, was inoperative after that time, and the subsequent delivery of it, so endorsed, by Dent to the plaintiff, was equiv [478] alent to a new endorsement by him in the firm name. If his delivery made the endorsement effectual to pass the title as the endorsement of the firm, it was effectual to bind the firm as endorsers, and thus a new obligation against the firm would be created by the survivor, which, we have seen, and all the books agree, he may not create. ~" The third plea, which denies for the reasons above stated the validity of the assignment, was good, and the demurrer to it should have been overruled. The second charge is greatly confused by the introduction of irrelevant matter, but, stripped of that, it was clearly proper, and should have been given. The superaddition to it was calculated, however, to restrict and prejudice the party who asked it, and consequently formed no objection so far as the plaintiff was concerned; The charge was: “ If the jury believed that the note sued on was made by defendant for the accommodation of Fontaine & Dent, — that said note was transferred to the said ‘plaintiff after maturity,” &c. The charge might well have stopped here, and rested the defence upon the want of consideration; as the plaintiff, conceding the validity of the assignment, took the note after its maturity, and consequently took it subject to all defences existing in favor of the drawer or maker as against Fontaine & Dent. — Ohitty on 'Bills, marg. p., 69, 70, and note 2 (10th Amer. from 9th Lon. ed.) ; Story on Bills, § 187, and authorities there cited. We are not sufficiently certain to justify us in expressing an opinion upon it, that we comprehend the point attempted to be presented by introducing into the charge the state of the accounts between the firms.of Fontaine &Dent and Fon-taine & Glasscock, and the promise by B. B. Fontaine, of the first named firm, that if the appellant would pay half the indebtedness of his firm to Fontaine & Dent, they would look to his (Glasscock’s) partner (Fontaine), son of B. B. Fontaine, for the other half, and the compliance on the part of Glass-cock in paying his half. It is not easy to perceive what this indebtedness has to do with the case, as the proof shows no effort to make it the consideration for the demand sued on. For the errors above noticed, let the judgment be reversed, and the cause remanded.