Bower v. Douglass , 25 Ga. 714 ( 1858 )

By the Court.

McDonald. J.

delivering the opinion.

[1.] The motion to dismiss the case was made before any proofs were submitted to the Court and jury, and was predicated on what appeared in the declaration. The note' is a sealed note, and is signed with the firm name, but it does not appear by whom it was signed, whether by Kirksey or Bower; nor does it appear in the declaration that both partners Were not present, assenting to it. We axe of the opinion of the presiding Judge in the Court below, that the cause ought not to have been dismissed.

[2.] If, when a party to a suit-is introduced as a witness on the trial, the party introduced has a right to testify in the cause generally, beyond the-point to which he is introduced; or if he cannottestify but in explanation thereof, the pleadings ought to be such as to make the evidence admissible' under hem. The defendant no where plead the non-existence of an account due to the firm to which the note was given, by the firm giving the note. The defendant, Bower, pleads that it was given by Kirksey, his former partner, for his private debt, and that it was not given for any matter or thing within the scope of any partnership business, if any partnership ever existsd. Independent of other considerations, the evidence was not admissible under the state of the pleadings. If the plea had set up such defence, the plaintiff might have been able to prove an account due by the defendants to the firm of Hendrick & Hungerford during the existence of both partnerships.

[3.] Under the facts disclosed in the record, we will not overrule the decision of the Court below refusing the motion to file a plea of set-off. The proper defence was a special plea, under our statute, setting forth the facts which were proven on the trial. If there were mutual accounts, they were settled by the giving of the note, and an account thus settled could not be pleaded as a set-off. Fraud or mistake in the settlement would have been a good defence to the note, to the extent that either could have been established.

[4.] The plaintiff in error submitted, in writing, several requests to the Court to charge the jury, amounting, in effect, to the same thing, that the defendant, Kirksey, had no right to bind Bower, after the dissolution of the partnership, by a new contract, even though the consideration be a debt due by the partners before dissolution. This point has been ruled by this Court, and upon the authority of that adjudication we hold, that the Court ought to have charged the jury as requested; that after the dissolution of the firm, one of the former partners cannot convert an open account, not bearing interest, into a liquidated demand bearing interest, so as to charge the other partner with a liability, with which he was not chargeable at the time of the dissolution. Humphries vs. Chastain, 5 Ga. 166.

Judgment reversed.