Opinion
Appeal from the Fourth Judicial District.
This was an action brought by plaintiffs against the defendants, as bankers, to recover the sum of $ 2,037 70, a balance due them, on the 2d day of October, 1851, for divers sums of money, deposited with the defendants. The defendant Wells, denied generally any indebtedness to the plaintiffs. The defendants, Willis, Skinner and Weed, denied generally their liability to the plaintiffs, and specially, the fact of their co-partnership with the defendant Wells, under the firm of Wells & Co. during the time of the deposits.
On the trial it appeared, that previous to February 1st, 1850, the plaintiffs had deposited with Thomas G. Wells alone; that at that date he entered into partnership with the other defendants; that after this partnership the plaintiffs continued their deposits with the defendants, under the firm name of Wells & Co., until some time between August, 1850, and January, 1851, when, in consequence of a quarrel with one of the defendants, no further deposits were made by plaintiffs at the bank until July, 1851, when deposits were renewed, and continued during July and August, 1851; that previous thereto, the partnership between defendants was dissolved March 20th, 1851, to take effect April 1st, 1851; that notices of this dissolution were published immediately thereafter, in the Alta California and the Pacific News; that the Alta California newspaper was taken by the plaintiffs and delivered to them at their place of business during the month of 1851; that after the dissolution of the firm, Wells continued to do business, as before, under the name of Wells & Co., and failed in October, 1851.
The question made at the trial was mainly, whether the plaintiffs had such notice of the dissolution of the old firm of Wells & Co., as released Willis, Skinner and Weed. The points of exception to the admissibility of evidence, and the instructions of the Court to the jury, sufficiently appear in the opinion of the Court.
The jury rendered their verdict as follows:
" They find for the plaintiffs against the defendant, Thomas G. Wells only, for the sum claimed, with interest."
Whereupon it was ordered, with the consent of the counsel of said Wells, that judgment be entered against him in favor of the said plaintiffs, and also, that judgment be entered in favor of the other defendants, Willis, Skinnerand Weed, against the said plaintiffs, for costs.
From this judgment, and the order of the Court denying a new trial, the plaintiffs appealed.
COUNSEL
1. Whether the plaintiffs were entitled to actual notice or not, as previous dealers, on the proof, was a question of law alone. (Day's Rep. 353; 17 Wend. 524; 22 Ib. 183.) An intermission of six months in the account, could not warrant the instruction to the jury, that they might dispense with notice. There is no authority for such doctrine. (Gorham v. Thompson, Peake 42, cited in Watson on Part, 384.) Lord Kenyon held notice necessary, although the partnership had been dissolved seven years before the debt sued on was contracted, and the dissolution was proved to be generally known.
The publication of notice, of itself, was insufficient, without other circumstances tending to show actual notice. (17 Wend. 527; 22 Ib. 194; 2 Starkie, 290.)
2. The verdict does not sustain the judgment as to the defendants Willis, Skinner and Weed. There was no finding as to them. (2 Cal. 192.)
J. P. Treadwell, for Appellants.
Halleck, Peachy, Billings & Park, for Respondent.
1. The notice of dissolution published in a paper taken by plaintiffs was proper evidence for the jury, and from which they might find actual notice. (1 M'Cord, 16, 388; 2 Wend. 191, 192; 6 Johns. 149, note; 2 McLean, 461; 1 Hill, 578, and note; 2 M'Cord, 379; 17 Pick. 264; 1 Starkie, 338; 2 Ib. 226; Egerly & Hinckley v. Wells & Co., Supreme Court Cal.; 10 Pick. 406.)
2. The Court properly refused to charge that plaintiffs were previous dealers; that was a question of fact. (17 Wend. 528; 22 Ib. 190, 200.) As to who are previous dealers, see Ib. pp. 190, 191, 195, 198, 199.)
3. The record shows that the verdict was received without objection, and judgment entered, on the plaintiff's motion. The error, if any, is their own.
JUDGES: Mr. Ch. J. Murray delivered the opinion of the Court. Mr. Justice Wells concurred.
OPINION
MURRAY, Judge
This action was brought against the retiring partners of an old firm, to recover for an amount due from the new firm, on the grounds that the plaintiffs were previous dealers, and had not been notified of the dissolution and continuation of the business by a new partnership.
The cause was tried by a jury, and a verdict rendered for the defendants, from which the plaintiffs appealed.
The errors assigned are:
1st. The admission of certain newspapers in evidence containing certain notices of the dissolution, which papers were not taken by the plaintiffs.
It appears by the record, that one of the papers so admitted, and containing such notice, was taken by the plaintiffs, and left at their place of business for several weeks. Upon this proof, we see no error in admitting other papers in evidence, by way of establishing the publicity of the notice, and raising the presumption of actual knowledge on the part of the plaintiffs.
2d. That the Court erred in charging the jury that " the publication of the notice of dissolution in a paper taken by the plaintiffs, was a fact from which they might infer actual notice."
So far from this being error, it has never been doubted within our knowledge, and in the precise language of this Court in the decision of Fgery & Hinckley v. Wells .
3d. " The refusal of the Court to instruct the jury that the proof showed that the plaintiffs were previous dealers."
The Court properly refused this instruction, having no right to charge the jury with respect to matters of fact.
4th. " That the Court erred in instructing the jury that if sufficient time had elapsed between the dealings of the plaintiffs with the old firm, and their subsequent transactions with the new firm, to put a reasonable man upon inquiry, that the plaintiffs might be treated as new dealers."
We see no error in this instruction, and we believe the rule to be founded on right reason and sound policy.
5th. " That the Court erred in allowing a witness to refer to, and testify from, the defendants' books."
The witness was the defendants' book-keeper, and was properly allowed, by the soundest rules of evidence, to refer to the defendants' books to refresh his memory, with regard to the plaintiffs' account.
We are not disposed to consider the objection taken to the form of the verdict and the judgment entered thereon, inasmuch as it was received and recorded by the consent of the plaintiffs.
Judgment affirmed, with costs.