Fisk, Watt & Co. v. Mead

Garland, J. delivered the opinion of the court. An affidavit was filed on the 16th of December, 1839, by Glendy Burke, one of the plaintiffs, alleging that Cowles Mead was indebted to plaintiffs in the sum of $7960 10, without any specification of the manner of indebtedness, whether on account, note or draft, and that he resided out of the State. An attachment issued on this affidavit under which one hundred hales of cotton were seized, which, by agreement were delivered to Keyes & Roberts. The next day, a petition was filed by Watt & Burke, styling themselves to be the firm of A. Fisk, Watt & Co., in liquidation, claiming from the defendant the sum mentioned, with interest at 8 per centum from July 4th, 1836. They say they “are holders and owners of a certain bill of exchange for the sum of $7961 10, drawn by B. G. Sims & Co. in liquidation, to the order of and endorsed by B. G. Sims on Cowles Mead, the said drawers waiving acceptance and presentation thereof to said Cowles Mead, the drawee of said bill which is endorsed by A. Fisk, Watt & Co. dated at-on the 4th of January, 1836, payable at the Agricultural Bank in Natchez, on the 4th July, 1836,” which said bill at maturity was legally demanded, protested for nonpayment, and notice of demand and non-payment given to B. G. Sims & Co. They further allege the transfer of the draft and the issuing of the attachment. In the month of April following, a supplemental petition was filed, alleging the loss of the draft, and diligent inquiry and search for it. The defendant, for answer, says he is not liable for the draft, that long before it was made, the firm of B. G. Sims & Co. was dissolved, of which plaintiffs had notice. That the draft was signed by Sims without authority, and he is not bound by it. On these pleadings the parties went to trial. After the dissolution of a partnership neither of the partners can bind the other, or the firm, without special authority, derived from a new contract between them. Such a contract is essentially that of mandate. So where a partner drew a bill of exchange in the name of a firm which had been dissolved, on one of the partners and waived acceptance and presentation to the drawee: Held, that the latter is not bound, or in any way liable for the payment of said draft. From tbe evidence, it appears that Sims and Mead were in partnership, and transacted business to a large amount with Fisk, Watt & Co., the partnership was dissolved about the commencement of the year 1834, of which plaintiffs had notice. Fisk, on the 10th of June, 1833, in a letter to defendant, expresses his gratification at the approaching dissolution of the partnership, and gives notice that his house will not continue business with Sims & Co. except in the way of reduction and liquidation. Yet, we find them in the years 1834 and 1835, continuing to deal with Sims, under the partnership style, and in the name of B. G. Sims & Cowles Mead; charging them with large sums paid, remittances made and adding materially to the accounts by charges for commissions, for endorsements and acceptances. The balance apparently due on the account of B. G. Sims & Cowles Mead of $4746 32, is charged to B. G, Sims & Co. the 1st September, 1835, and the draft given in the name of the latter firm on the dormant partner, the acceptance waived by the drawer and protest made for non-payment, without the drawee and defendant having any notice. When the partnership was dissolved, it does not appear that Sims had any particular authority to liquidate its affairs or use the name as drawer or endorser of notes or drafts for that purpose, much less to contract new engagements. In the case of Peters & Millard vs. Gardere, syndic, 8 La. Rep., 568, it was held, after the dissolution of a firm neither party can bind the other without his authority. That authority must be derived not from their former relations as partners, but from a new contract between them. Such contract is essentially that of mandate. — See also 6 La. Rep., 483; 4 Ibid. 32; Gow on Partnership, 230, 231, et seq. Sims had no authority to bind his partner, there is therefore no legal acknowledgment of the balance of accounts, which plaintiffs claim. As to his demand on the accounts he has not sufficiently established it, even if judgment could be rendered in the present state of the pleadings. But we do not well see how a judgment can be rendered for a balance of account on a [336] petition claiming- tbe amount of a draft alleged to be lost, al-may be, as the Judge of the Commercial Court calls ft, “a mongrel Mississippi instrument.” We are not disposed to be at all technical, but pleadings should have a reasonable certainty, and some connection exist between the allegations and the evidence. The judgment of the Commercial Court is therefore annulled, avoided and reversed, and a judgment of non-suit rendered against the plaintiffs, with costs in both courts.