Scheiffelin v. Stevens, 60 N.C. 106, 1 Win. 106 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 106, 1 Win. 106

SCHEIFFELIN, HAINS & CO. v. J. M. STEVENS,

Where a partnership has had continuous dealings with a distant correspondent for some time, actual notice of its dissolution must bo 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.

Publication of such notice in a local newspaper in this State, was held not actual notice,.non was it evidence from which-aetual notice could, be inferred..

This was an action of assumpsit for goods sold and delivered, tried before Osborne, J., at the Eall Term, 1861, of Buncombe Superior Court.

.The plaintiffs were partners, dealing in drugs in the city of New York. The defendant and Boyd entered into a co-partnership in the drug business, in the town of Asheville, early in the year 1856, which was dissolved on the 7th of Dec., 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 and Stevens, in the year 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 plaintiffs exhibited' orders by the firm of Boyd and Stevens, on them, of the date 14th June,. 1855, 1st July, 1855, October,. 1855, of 16th November, 1855,. and 5th December, 1855, before- the dissolution, and- of 12th March, 1856, 22nd, August, 18-5-6, 15th^September, 1856,17th September, 1856, 6-th February, 1857, 9th February, 1857, March 1857, 29th August, 18-57, 3rd September, 1857, 9th October, 1857, 10th February, 1858, 12th March, 1858, 2nd July, 1858. This evidence was offered to- show a continuous dealing, 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 the plaintiffs..

G-aither, for the- defendant.

Battle, J.

The point presented in this case-is said by the-counsel, for the plaintiffs, 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 Tenner-see, and -.probably other States. See'Col. -on Part. sec. 532, et sag, and the cases referred to in the notes. In Wardwell v. Haight, 2 Barb. (N. Y. Rep.) 549, the ride is laid -down pre•cisely as is contended-lor 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, actnal notice of its dissolution must be given to such correspondent to .prevent, a-liability of all the members of the firm, for subsequent dealings-earried on by-one of the partners in the name of the firm, thongli without the knowledge or consent of the late partners. The rale is reasonable -and convenient, and we have no 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 te put the other on his guard against it. Thus vfhere 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 ivay, 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. Ilis Honor -erred in deciding otherwise. The judgment must be re versed and a venire <le novo awarded.

Pke OmaAM, .Judgment reversed.