B. F. Goodrich Rubber Co. v. Barron , 130 S.C. 339 ( 1924 )

The opinion of the Court was delivered by

Mr. Justice Fraser.

The statement as it appears in the case is:

“This action was commenced May 11, 1922, by appellant, a corporation, against Wilson Barron and R. H. Mobley, as. partners doing business under the firm name of B. & M. Motor* Company, for the recovery of $286.02, alleged in the complaint to be due by defendants to the plaintiff upon account for goods and merchandise sold and delivered by the latter to the former on October 14, 1921, with the war tax thereon, and for $9 interest thereon. The summons and complaint, with sworn itemized statement of the account, were served upon each of the defendants, but the defendant Wilson Barron made no> answer thereto. The defendant R. H. Mobley answered, admitting that he had been a partner with Wilson Barron, of the B. & M. Motor Company, prior and up to the 1st day of January, 1921, but denied that he had been such after that date, alleging that, on the 14th day of October, 1921, the said partnership had been dissolved and no longer existed. ' This defendant (Mobley) alleged that he had no knowledge as to the correctness of the plaintiff’s claim, and that, if said debt was due and owing, it was not a debt of the partnership known as the B. & M. Motor Company, and that his codefendant, Wilson Barron, had no authority to pledge the credit of the B. & M. Motor Company for said debt. Wherefore he asked that as to him the complaint be dismissed.

“Upon the issues thus presented, the action came on for trial at the November (1923) term of the Common Pleas for York County. At the conclusion of the testimony, the attorney for the appellant moved the Court for the direction of a verdict in favor of the plaintiff, upon grounds substantially as follows:

“(1) That, if the defendant, R. H. Mobley, retired from the firm of B. & M. Motor Company at the time stated in his answer, and there was a dissolution of said firm at that time, as he claims, the undisputed testimony shows, and this defendant admits, that he did not file in the office of the clerk of the Court of York County, where the business of said firm was located, any notice of such retirement, or change of ownership or proprietorship in said firm or establishment, as required by the Act of the General Assembly of this State, relating to mercantile and industrial establishments, designated as Act No. 511, approved the 9th day of March, 1918; and that, by reason of said defendant’s failure to file such notice according to' the requirements of said act, he is liable to plaintiff as if no such dissolution took place.

“(2) That the plaintiff was without actual notice of the dissolution of said firm, if there was any, when said debt was contracted; and there was no publication thereof in any newspaper or other public means employed to give notice of any such dissolution, whereby the defendant, R. H. Mobley, would be relieved of liability as a partner to pay said debt to plaintiff.

“(3) Because the only reasonable inference of which the evidence is susceptible is that the B. & M. Motor Company was a partnership at the time this indebtedness was created, and that no notice was given sufficient to relieve the defendant, R. H. Mobley, from liability to the plaintiff thereon as a partner of said firm.

“After hearing argument on said motion, his Honor, the presiding Judge, on the 30th day of November, 1923, the day of trial, directed the jury to find a verdict for the plaintiff for the full amount of its account, less the interest claimed thereon, and the jury accordingly rendered its said verdict in plaintiff’s favor, the substance and form of said verdict being set out below.

“No motion was noticed for a new trial by the defendants, or either of them, when said verdict was rendered, but on the 7th day of December, 1923, which was the last day of the term of Court at which said case was tried, and after the jurors for the term had been discharged, his Honor, the presiding Judge, without notice to plaintiff’s attorney, and in the latter’s absence, made an order setting said verdict aside and granting a new trial as to the defendant, R. H. Mobley, and directing said verdict to stand against the defendant, Wilson Barron; the first notice to the plaintiff of the making of said order being given through a letter mailed to its attorney by the attorneys of said R. H. Mobley, under date of December 12, 1923, setting forth that said order had been made.

“From the said order, which is set out below, the B. F. Goodrich Rubber Company has appealed to this Court, and asks that said order be vacated and set aside, and that said verdict in plaintiff’s favor stand: the said appeal being based on the exceptions of plaintiff, set out below.”

This is a case of statutory construction, pure and simple, and the statute reads (Code of Daws of South Carolina, Vol. 3, § 3877) :

“Retiring Otmer or Partner to be liable for Debts, Unless Sign Changed and Notice Piled. In case there be any change in the owner or owners, proprietor or proprietors of any such mercantile or industrial establishment, any person retiring from such ownership or proprietorship shall file in the office of the Clerk of Court of the county in which the principal place of business of such mercantile or industrial establishment is located a notice of such change, and shall have the sign or signs herein provided for changed, and until both such notices shall be filed and such change made on such signs, such person shall be liable for all debts and contracts of such mercantile or industrial establishment according to the interest he or she formerly had therein.”

It will be seen that the answer of Mr. Mobley admitted that he and Mr. Wilson had been copartners, and based his defense solely on the ground that the copartnership had been dissolved months before the sale of the goods for the price of which this action was brought. The statute provides:

“Until both such notices shall be filed and such change made on the signs, such persons shall be liable for all debts and contracts of such mercantile or industrial establishment according to the interest he or she formerly had therein.”

The admitted facts are that no notice was filed, and the original order directing a verdict was correct, and it was an error of law to set aside the verdict. The cases relied upon by the respondent do not apply, as they do not pretend to construe this statute.

The order setting aside the verdict is reversed, and the case remanded to the Circuit Court, with permission to enter up judgment on the.verdict.

Messrs. Justices Watts and Marion concur. Mr. Chief Justice Gary did not participate.