Boswell Bros. v. Lynchburg Shoe Co. ( 1915 )

Potter, J.,

delivered the opinion of the court.

Appellee, the Lynchburg Shoe Company, .filed its suit in the circuit court of Simpson county against J. L. Boswell and Ira Boswell for a balance of six hundred and twenty-one dollars and eighty cents alleged to b'e due on a series of notes executed in the name of Boswell Bros., formerly a partnership, but since dissolved, composed of N. L. Boswell and Ira Boswell, which notes, according to the allegations of the declaration, were executed in settlement of an open account due by said partnership for a debt contracted before dissolution. J. L. Boswell, as the declaration alleges and the exhibits show, executed the notes sued on in the name of Boswell Bros. The defendants filed a plea of general issue, and Ira Boswell filed two. special pleas; both of them denying* the execution of the notes, and denying* that he was a member of the firm of Boswell Bros, at the time of the execution of the notes, and alleging that at the time of the execution of the notes he had dissolved his partnership with the said Boswell Bros., aud denying the authority of J. L. Boswell to execute said notes so as to bind him for the payment of same. At the close of the evidence, the court, on motion of the .plaintiff, granted a peremptory instruction for the plaintiff against J. L. Boswell and Ira Boswell for the full sum sued for.

The testimony in the ease shows that for several years prior to September 12, 1911, there existed at Pinola, in Simpson county, a partnership composed of J. L. Boswell and Ira Boswell, and known as Boswell Bros., who conducted a mercantile business; that on the 12th day of September, 1911, this firm dissolved and Ira Boswell moved to Greenwood, Miss., and J. L. Boswell then notified the plaintiff of the dissolution of the firm and the withdrawal of Ira Boswell therefrom in the following letter:

Pinola, Miss., 9,12,11.

Lynchburg Shoe Co., Lynchburg-, Va. — Gentlemen: Our bank advises that they returned our July note to you, which we paid by check on the Pinola Bank July 29th. Will you please return this note to us? Now the August note is due, and we will' take care of it as soon as possible. We have some changes in our business, Mr. Ira Boswell having withdrawn, but we will meet all obligations in a short time.

Tours very truly, Boswell Bros.

(The notes mentioned in the above letter are not the ones here in controversy.)

On September 15th, in reply to the above letter, the Lynchburg Shoe Company addressed a letter to Boswell Bros., at Pinola, in which they said, among other things:

“We note that Mr. Ira Boswell had withdrawn from your firm. We beg to call jmur attention to the fact that the withdrawal of Mr. Boswell does not release him from any obligation incurred while a member of the firm. All that you owe us was purchased while Mr. Ira Boswell was a member of the fina; and, of course, we hold him jointly responsible for this indebtedness due us by Boswell Bros.”

After the above correspondence, which it will be noted was entirely between defendant Shoe Company and J. L. Boswell, who was then doing business in the name of Boswell Bros., the promissory notes for the alleged debt in question were executed on October 31,' 1911, by J. L. Boswell alone, who signed the firm name of Boswell Bros.

This was' a suit on the promissory notes executed, as above stated, on the 31st day of October, 1911, by J. L. Boswell, who was at that time conducting a business in the firm name of Boswell Bros. These notes were given in payment of an inclebtness contracted by the firm of Boswell Bros, before it dissolved. There is no evidence that Ira 'Boswell authorized the execution of the notes; and the only question in the case is whether or not one partner in a firm, after a firm has dissolved, can execute notes binding on another for debts contracted during the existence of the partnership without the authority from the retiring partner to execute same.

We think it well settled in this state that after the dissolution of a partnership, the power of one partner to bind another by executing a note in the partnership name, for a debt of the firm, is at an end. Maxey v. Strong, 53 Miss. 280; Brown v. Broach, 52 Miss. 536.

This case is therefore reversed and remanded.

Reversed and remanded.