First National Bank v. Wade

Smith, J.

1. “A partner may not only encumber his undivided interest to secure a partnership debt, but he may also encumber such interest to secure his individual debt, subject, however, to the superior claim of the partnership creditors to be first paid.” Taylor v. McLaughlin, 120 Ga. 703, 707 (48 S. E. 203, 205), and cit. Under the evidence in this ease the claimants were creditors of the partnership.

2. The court did not err, as contended in the 4th, 5th, and 6th grounds of the motion for a new trial, in excluding the testimony of J. S. Sherman, a witness for the plaintiff, to the effect that while he was acting as president of the plaintiff bank he took from P. H. Wade, the defendant in fi. fa., a mortgage in favor of the bank, covering a fourth undivided interest in. the property in controversy, and that Wade at that time told the-witness that he owned a fourth interest in the Wade Company. The evidence shows that the bank took the mortgage a considerable length of time after P. H. Wade had sold out his interest in the partnership, and a statement by him after such sale that he owned an interest in the partnership property would not be admissible in evidence. All the other evidence, the exclusion of which is complained of in these grounds of the motion for a new trial, was properly ruled out by the lower court.

3. The court did not err, as contended in the 1th, 8th, and 9th grounds of the motion for a new trial, in holding that there was no duty on the part of the partnership to give notice of the dissolution of the partnership or the withdrawal of one of the partners, so far as it related to the plaintiff, a creditor of an individual partner. The notice which the law requires to be given of the dissolution of a partnership or the withdrawal of a partner (Civil Code of 1910, § 3163) is intended to apply only to the creditors of the partnership, and not to the creditors of an individual partner. Under this ruling there is no estoppel as against the claimants.

4. The excerpts from the charge of the court set out in the 10 th and 11th grounds of the motion for a'new trial, which in effect excluded the theory of estoppel or of the duty to give notice of the dissolution of the partnership, are not erroneous for any of the reasons assigned, but contain a correct statement of the law as applicable to the facts in this case.

5. There was no error, as contended in the 12th ground of the motion for % new trial, in the failure to charge the jury on the conflict in the testimony of T. W. Wade and J. S. Sherman. The charge of the court fully instructed the jury as to all the substantial issues in the case, and, in the absence of a timely appropriate written request for further instructions, failure to charge on this particular matter was not error.

6. There is no merit in the contention contained in the 13th ground of the motion for a new trial, as the writing or bill of sale from P. H. Wade to the claimants was properly admitted in evidence.

7. There was ample evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.