Fontaine v. Lee's Adm'rs , 6 Ala. 889 ( 1844 )

'COLLIER, J. J.

The only question raised by the assignment of errors is, whether the third count discloses a cause of action with which the defendant’s intestate was chargeable when living, and which can now be enforced against them as his representatives. This count, it must be admitted, is unusual in point of form. Placing out of view so much as is said in respect to the continuance of the partnership, for. the purposes of liquidation, and its dissolution for other purposes, and it charges that the intestate in his lifetime made the note therein described, in the name of Abrahams, Lee & Co. for a debt of that concern before that time due to the plaintiffs, and thereby promised to pay, &c. If the intestate was not authorized to make a note on behalf of the late firm of which he was a member, he could not bind them by such an act, yet he himself would be chargeable on such an engagement. In fact, it would be as much his note as if it was not signed in the firm name.

Without an authority fos that purpose from his co-partners, a member of a partnership cannot, after its dissolution, bind them by anote or bill made professedly in their joint names. That is, if-due notice has been given that their connection in business has ceased. The fact that the note or bill has been substituted for a pre-existing debt of the firm, .will not impart to it validity in law.

When a partnership is said to be dissolved for all purposes, except that of liquidation, we understand that it has ceased to do the business for which it was originally created; and that the only business in which it is engaged is that of ascertaining, settling, adjusting and paying the debts of the concern. Such is but the effect of every dissolution; it does not extinguish the debts, but the legal duty of the individual' members of the firm to adjust and pay is still imperative. But in no case, as we have seen, are they severally authorized in virtue of their previous connection to make notes or draw bills that would be binding on all. There must be some new delegation of power, or such an act is invalid, except as to him who is the agent. In New York, it has been held, that if one partner, who is authorized to adjust the concerns of the partnership after its dissolution, settles an account, and acknowledges a balance to be due from the partnership, this acknowledgment will not bind his co-partner. [Hackley v. Patrick, 3 Johns. Rep. 528; Walden v. Shelburne, 15 Johns. Rep. 409; Hopkins v. Banks, 7 Cowen’s Rep. 650; Baker v. Stackpole, 9 id. 433.]

In Sandford v. Mickels & Forman, [4 Johns. Rep. 224,] upon the dissolution of the partnership it was agreed that oneof the partners should take the stock in trade, and collect and receive the outstanding debts and pay the debts of the partnership; yet it was held that this did not confer the authority to indorse notes, and that he could not use the name of his late firm in order to transfer the title of a note of which it was the legal proprietor. And in The Bank of South Carolina v. Humphreys, [1 McC. Rep. 389,] it was decided, that after a dissolution of a partnership, one partner cannot bind the other, by drawing a note in the partnership name, unless he has special power vested in him for that purpose: it is not enough that he be authorized to settle the partnership accounts. [See, also, Whitman v. Leonard, 3 Pick. Rep. 177; Whitaker v. Brown, 10 Wend. Rep. 75; 2 Phil. Ev. C. & H.’s notes, 173-4.]

From the view taken, it results that what is said in the count we are considering, of the continuation of the partnership for the purpose of liquidation, can have no influence in determining that the cause of action disclosed in it, is not enforceable against the representatives of the intestate. If the partnership were liable upon the note, then the count might be bad, because it does not show that the intestate survived his co-partners, or that they, if living, are insolvent, &c. as the statute provides. But we can discover no substantial defect for which thé demurrer should have been sustained.

It is insisted for the defendant in error, that even if the circuit court erred, yet the judgment should only be reversed in respect to the third count. Our practice has been in civil cases, where a judgment is erroneous, and cannot be here amended or rendered, to reverse it in tato, so as to place the parties in the precise condition in which they stood at the time the first error was committed. If the primary court overrules a demurrer to an entire declaration, or one or more of several counts, and an issue is tried and found for the plaintiff, the revising tribunal not only reverses the judgment on demurrer, but also that rendered upon the verdict: and this, although the several counts are, in point of fact, obviously founded upon distinct causes of action. The party who has been prejudiced by a decision against him, can only have the error repaired by such a practice. If he voluntarily proceeded to try the issue of fact, instead of seeking to correct the action of the court upon demurrer, then, perhaps, the plaintiff should not be allowed to insist upon a re-trial of the same issue; but he is not permitted to appeal or sue a writ of error until the entire cause is disposed of. In this view, it would seem but sheer justice that a plaintiff, at whose instance a judgment at law has been reversed, should be entitjed to a trial de novo.

The analogy, which the counsel for the defendant in error has sought to establish between divil and criminal proceedings, cannot be maintained. The nature of prosecutions at the instance of the State; the rights secured to the accused by the humane provisions of the common law, and the guaranties of the constb tution, all concur to show the striking impropriety of trying the second time for the same offence, one who has been already am quitted.' To this it may be added, that there is not the same connection between public offences, as there is between private demands, which, for anything appearing to the contrary, may grow out of the same transaction.

A judgment at law in a civil cause, is an entire thing, and it is pnly that 'which is the final action of the court upon all the points arising in the cause, that authorizes a writ of error. And whenever there is error in the proceedings which entered into and affected the disposition of the cause, the judgment is annulled, and if remanded, the case must be proceeded in, as if it had never been tried.

This brings us to the conclusion that the judgment of the circuit court must be reversed, and the cause remanded.