Harris v. Singh , 38 N.M. 47 ( 1933 )

On Motion for Rehearing. Appellant renews the contention that the amended complaint was vulnerable to the plea of limitation. The argument does not change our views. It suggests, however, that a decision misunderstood by counsel may confuse others. Some clarification may be useful.

The exact question before us was whether this amended complaint, for the first time stating a cause of action against appellant, should have effect by relation as of the date of the original complaint, and the intermediate running of the statute of limitations be thus avoided.

We intended to make it clear that 1929 Comp. St. § 83-110, is determinative. We think it is, on either of two theories: In the first place, if this provision would toll or open the limitation statute, to permit appellee, after his first failure, to commence a new suit, it would surely avoid the plea of limitation, where, either properly or without objection, he had accomplished the same end by amending his original complaint; the greater right necessarily including the lesser. In the second place, if, following the usual method, as we did not, we had found it necessary to define "cause of action" in this connection, the liberality of this provision in favor of the creditor would forbid a strict or technical definition.

It is urged that we failed to pass upon the contention of fact that no partnership existed on March 24, 1922, when the present notes were executed as renewals. A finding to this effect was requested by appellant and rejected. Counsel assume that this negative fact is shown by undisputed evidence. That may be true in the sense that the partners were not, in 1922, as they had been in 1921, pursuing in partnership the business of cotton raising. But no evidence is brought to our attention of any formal act of dissolution, or of any notice of dissolution, and the 1922 renewals had complete relation to 1920 and 1921 business. As we understand, one with whom the partnership has established business relations is not affected by a mere cessation of the business for which the partnership was created, unless he has notice or knowledge of it.

It is suggested that the partnership was in its nature nontrading. We see no force to this in the present connection. It might limit the ostensible authority of the partners to execute negotiable instruments in the firm name, but that is a matter not before us on this appeal.

The motion for rehearing will be denied.

SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.