Opinion
(June Term, 1863.)
1. Where a partnership has had continuous dealing with a distant correspondent for some time, actual notice of its dissolution must be given to such correspondent to prevent a liability of all the members of the firm for subsequent dealings carried on by one of the partners in the name of the firm, though without the knowledge of consent of the late partners.
2. Publications of such notice in a local news paper in this State was held not actual notice, nor was it evidence from which actual notice could be inferred.
ASSUMPSIT for goods sold and delivered tried before Osborne, (107) J., at Fall Term, 1861, of BUNCOMBE.
The plaintiffs were partners, dealing in drugs in the city of New York. The defendant and Boyd entered into a copartnership in the drug business in the town of Asheville, early in the year 1855, which was dissolved on 7 December in the same year, and notice thereof published in the Spectator, a newspaper printed in Asheville, for three weeks consecutively. The goods for which this action was brought were delivered to Boyd, in the name of Boyd Stevens, in 1857 and 1858, the orders for the same having been made by Boyd in the partnership name without the knowledge or privity of Stevens. The plaintiff exhibited orders by the firm of Boyd Stevens, on them, of date 14 June, 1855, 1 July, 1855, October, 1855, 16 November, 1855, and 5 December, 1855, before the dissolution, and of 12 March, 1856, 22 August, 1856, 15 September, 1856, 17 September, 1856, 6 February, 1857,9 February, 1857, March, 1857, 29 August; 1857, 3 September, 1857, 9 October, 1857, 10 February, 1858, 12 March, 1858, 2 July, 1858. This evidence was offered to show a continuous, being with the firm of Boyd Stevens, both before and after the dissolution. A verdict was taken, by consent, subject to the opinion of the court on the law governing the case.
His Honor, on consideration, being of opinion with the defendant on the point of law, ordered a nonsuit, from which the plaintiffs appealed.
Merrimon for plaintiffs.
Gaither for defendant.
The point presented in this case is said by the counsel for the plaintiff not to be found adjudicated in any of the reports of this State. It is however, well settled in the mercantile law of England and in NEW YORK and in Tennessee, and probably other States. See (108) Collier Partnership, sec. 532 et seq., and the cases referred to in the notes. In Wardwell v. Haight, 2 Barb. (N. Y.), 549, the rule is laid down precisely as is contended for by the counsel of the plaintiffs in this case. That rule is that when a partnership has had continuous dealings with a distant correspondent for some time, actual notice of its dissolution must be given to such correspondent to prevent a liability of all the members of the firm for subsequent dealings carried on by one of the partners in the name of the firm, though without the knowledge or consent of the late partners. The rule is reasonable and convenient, and we have hesitation in recognizing it as a part of our law. It is founded upon a very general principle that where one of two persons must suffer a loss, he upon whom is imposed the duty of being active to prevent it shall bear it, where he has failed to put the other on his guard against it. Thus where a customer has been in the habit of sending his servant to purchase goods of his merchant on credit, and afterwards sends him with money to buy other goods, the customer, and not the merchant, shall bear the loss in case his servant had, on the way, embezzled the money. So if a husband suffer his wife to take up goods on his credit, he shall still be liable, though he has forbidden her to deal in that way, unless he has notified the tradesman not to trust her.
Applying this principle to the case now before us, we think it was the duty of the partners in Asheville to give notice of the dissolution of their copartnership to their correspondents in NEW YORK, and that a publication of it in the Asheville Spectator was not actual notice, nor did it furnish any evidence from which such notice could be inferred. His Honor erred in deciding otherwise. The judgment must be
PER CURIAM. Reversed.
Cited: Ellison v. Sexton, 105 N.C. 360; Straus v. Sparrow, N.C. 311.
(109)