Speake v. White , 14 Tex. 364 ( 1855 )

Wheeler, J.

The principal question to be determined, is, whether the acknowledgment or promise, made by one of the co-partners and defendants, after the dissolution of the partnership, was binding upon the firm, and would warrant a recovery thereon, without other evidence of the antecedent indebtedness -of the firm.

Whether one partner has the power to bind the firm, by his acknowledgment, after the dissolution of the partnership, of an antecedent indebtedness, has been an unsettled and much disputed question. But there is certainly a great weight of authority, in the American decisions, in support of the negative of the question. (3 Kent Com. 351, n.) The opposite doctrine, maintained by some of the earlier decisions in England, has occasioned a recent Act of Parliament, which is said to have remedied some of the mischiefs inherent in it, but to have left behind some which are, as yet, without redress. (Story on Partnership, Sec. 324.)

“ After the dissolution of a partnership, (says Kent,) the “ power of the members to bind the firm ceases, and an acknow- “ ledgment of a debt will not, of itself, be sufficient, inasmuch as “ that would, in effect, be keeping the firm in life and activity. “ To give an acknowledgment any force, the existence of the “ original partnership debt must be proved, or admitted aliunde; “ and then the confession of a partner, after the dissolution, is “ admissible, as to demands not barred by the Statute of limit- “ ations.” (3 Kent, 50.) In treating of the question whether acknowledgments made by any of the partners under such circumstances, are binding upon the others, Judge Story says, “ It seems difficult, upon principle, to perceive how they can be, “ any more than the declarations, or acts, or acknowledgments “ of any other agent of the partnership would be, after his agency “ has ceased. In the latter case, they are certainly held inad- “ missible by the Courts of Common Law, upon grounds which “ seem absolutely irresistible.” (Story, Part. Sec. 323; Van Reuven v. Parmelee, 2 Com. N. Y. R. 523.) That such acknowledgments are not binding upon the other partners, is the safer and the sounder doctrine upon principle, and the better supported by authority. (Story on Partnership, Sec. 323, 324 and notes; Bell v. Morrison, 1 Pet. R. 351.) And we are of opinion that it was very properly maintained in this case.

It is objected to the judgment, however, that the defendants were not entitled to the benefit of this defence, by instructions, upon the trial, because their plea setting it up had been stricken out. To this it is a sufficient answer, that the plea was stricken out at the instance of the plaintiffs themselves ; and they cannot now claim an advantage in consequence of an error occasioned by themselves.

It was objected to the plea, that it was not in time ; but it was pleaded at the first Term after service, and there does not appear to have been any unreasonable or unnecessary delay, or disposition manifested by the defendants to delay the trial. If the plaintiff was taken by. surprise, and was not prepared to meet the defence, he instead of moving to strike out the plea, should have asked a continuance to obtain other evidence of his cause of action.

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.