Batson v. Thompson Land & Lumber Co.

Gaíhoon, L, delivered the opinion of the court. The only question for determination in this case is whether or not there was error in the action of the court below in giving a peremptory instruction to- the jury to find for the defendant in the court below. The Thompson Land & Lumber Company was a partnership,, and not a corporation. It had been conducting a sawmill business, but in February, 1905, sold its plant, certain lands, timber-racks, and its personal property to a man by the name of Strong, who in March, 1905, conveyed all the same property to a corporation called the Magnolia Milling Company. It seems that E. L. Thompson was the manager under the partnership, and continued to have such relation with the vendees of .the plant. In August, 1905, Batson was the owner of some logs, which he testifies he sold to Thompson, without any knowledge of any transfer of interest, and thinking he Avas selling to the Thompson Land & Lumber Company. The account not being paid at maturity, he sued the original partnership in the court of a justice of the. peace, and recovered a personal judgment against E. L. Thompson. Whether or not there Avas any sale in fact is controverted, and there is testimony on both sides. Whether or not Batson had any knowledge of the transfer of the plant when he ipade the sale to- Thompson, if he did make any sale,, is controverted. In support of the proposition on the part of Thompson Land & Lumber Company that there was notice to Batson of the conveyance of the plant, the deed of conveyance is produced, and [203] its proper record on the land books of the county shown. This, perhaps, was proper evidence as a circumstance in the case to show notice; but it is not of itself conclusive, as it must have been thought to be by the learned judge below. It is well settled that, on the dissolution of a partnership, the then existing creditors must have actual notice, and, as to subsequent creditors, there should at least be such publication as the courts would hold to be proper constructive notice. Prentiss v. Sinclair, 5 Vt., 149, 26 Am. Dec., 291; B. & A. Dig., 907; Polk v. Oliver, 56 Miss., 566. We think, on the whole case, the facts should have been left to the jury for determination, and that the peremptory instruction against the plaintiff was error. Reversed! and remanded. Whiteield, O. J., being ill, took no part in the decision of this cause.