Raywinkle v. Southern Coal Co.

Hart, J., (after stating the facts). In the case of Gaar v. Huggins & Bro., 12 Bush. (Ky.) 259, the court said: “A retiring partner is not required to give notice so as to relieve himself from liability to those who for the first time deal with the firm after the dissolution takes place, unless he permits his name to be used in the transaction’ of the business, or so conducts himself with reference to the firm transactions as to induce the belief in those'dealing with the firm that he is still a member.” To the same effect see: Austin v. Appling, 88 Ga. 54; Puritan Trust Co. v. Coffey, (Mass.) 62 N. E. 970; Swigert v. Aspden, (Minn.) 54 N. W. 738; Bloch v. Price, 21 Mo. App. 14. The testimony in this case shows that the defendant Raywinkle retired from the firm in June, 1911, before it had completed the erection of the buildings designed for the use of the partnership and before the machinery had been installed therein. This fact was common knowledge in the locality where the business of the firm was to be transacted although no public notice was given. More than two years elapsed 'between the date of his retirement from the firm and the period at which the coal was sold by the plaintiff to the firm. The plaintiff during this time had had no dealings whatever with the firm and can not (be said to have contracted with the firm on-the credit of Raywinkle. Raywinkle’s name never appeared in the firm and it is not shown that the firm in conducting its business ever used his name. Under these circumstances we do not think he was responsible for the debt of the plaintiff and the court erred in directing a verdict for the plaintiff. Counsel for plaintiff relies on the case of Bluff City Lumber Co. v. Bank of Clarksville, 95 Ark. 1, but in that case the facts were essentially different. There the creditors had dealings with the old firm and had no notice of the dissolution before the indebtedness sued for was incurred. Therefore the creditors were not affected by the dissolution. But as we have already seen, in this case the style of the firm did not disclose the name of any individual partner and the defendant had retired from the firm before it began to transact the business for which it was organized, and á period of two years had elapsed before the plaintiff transacted any business whatever with the firm. During this time the defendant Raywinkle resided in an adjoining county and took no part whatever in the transaction of the business of the firm and it was a matter of common knowledge in the locality where the firm did business that he was not interested in the business. Under these circumstances the court should have directed a verdict for the defendant, and, inasmuch as the facts have been fully developed the judgment will be reversed and the cause of action of the plaintiff will be dismissed. It is so ordered.