
    No. 11,452.
    Schmidt & Ziegler vs. G. B. Ittman et al.
    The plaintiffs sued on open account and alleged that the account had been acknowledged by promissory notes.
    The defendants severed in their defence.
    A Partner.
    One of the defendants contended that he was not a partner.
    plea oe Insanitv.
    The executrix representing the succession of the other defendant contended that he was not sane at the time the goods were bought, and subsequently when the notes were furnished.
    bim, oe Exceptions.
    By the first (the surviving partner) objection was made to the admissibility of evidence, as to him, on the ground that it was an attempt to hold him for another person’s debt, and that the open account had been novated by the notes in question.
    The partnership was sued, and from it the amount due was claimed. The notes were furnished by the partnership. Evidence was admissible to prove that the defendant was not a third person, but a.partner.
    
    Evidence oe' partnership.
    There was a partnership formed many years ago between the two brothers.
    At the time stipulated in the formal act of partnership, for ending the partnership, it does not appear to have been dissolved.
    The property, under the formal act of partnership, was the joint property of the partners.
    It is not satisfactorily established that the joint ownership was dissolved.
    
      The property in which the partnership business was conducted was leased to the defendants jointly. The partner who defends on the ground that there was no reconduction of the partnership, obtained extension for the payment of the partnership debts. His active management and"control of the business were such as to create the belief, on the part of others at the place of business, that he continued as a partner.
    The amounts he has drawn and the acknowledgments indicate a continuous partnership business.
    Though Not Known to Creditor.
    The partnership being established, the principle applies that, whenever one is a partner, he is responsible for the debts of the partnership, though it may not have been known by the creditor that he was a partner.
    Plea Untimely Filed.
    The other defendant, the executrix, was without right to raise an issue of fact, by pleading it after the case has been argued and submitted for decision.
    The issue is passed upon on the plea of general denial, originally interposed.
    Facts Not Notorious or Known to Creditor.
    It is not proved that the defendant, who died since the suit was instituted, was insane at the times the goods were bought. If he was insane, it was not a notorious fact. It is not shown that the plaintiffs were aware of any insanity on his part. The fact of insanity became known at the date the notes were furnished. They are of no avail, valueless, and plaintiff is without right to charge him with the price of goods sold to him on the day the notes were executed and goods sold subsequent to that date.
    The judgment appealed from is amended by deducting the price of the goods sold on the dates just stated.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    
      W. 8. Benedict and if. O. Cage Attorneys for Plaintiffs and Appellees:
    No amendment can be admitted after the case has been tried, argued and submitted. 11 K,. 418; 12 An. 116.
    A supplemental and amended answer alleging insanity filed under these circumstances was properly stricken from the record on motion of the plaintiffs, although it was styled a peremptory exception.
    Where the affairs of a firm are managed by one of the partners under a power of attorney, goods sold and delivered to the firm on his orders and used and consumed in the firm’s business must be paid for, although one of the members of the firm was insane at the time.
    
      Although one of the members of the firm be insane, the partnership continues. It is his interdiction which dissolves it. C. O. 2876, 2883.
    Commercial partners are bound in solidoJor the debts of the partnership. O. C. 2872.
    The secret partner is equally li.able with the publicly avowed partner. 30 An. 640.
    
      James J. MeLoughlin Attorney for Succession of Geo. B. Ittrnan, Defendant and Appellant:
    Where defendant has offered no evidence whatever, and where plaintiffs have offered without restriction the record of another suit to which defendant was a party, the plaintiffs are bound by all the facts disclosed therein and will not be permitted to deny their verity. 39 An. 1089, Kallman vs. Creditors.
    When plaintiffs themselves offer evidence which discloses the fact that a deceased defendant was insane and incapable of contracting at the time they contracted with him, it is permissible for the executrix of the succession, after the evidence is in, to file a peremptory exception based upon the facts disclosed by the plaintiffs’ testimony, and such exception is not an answer, but is a peremptory exception, admissible at any time before judgment is rendered. C. P. 346; 42 An. 735.
    Such an exception does not raise new issues, for it rests entirely upon the facts put in evidence by the plaintiffs, and they are estopped by their own acts from objecting to the effect of their own testimony introduced without qualification.
    One contracting with a person notoriously insane can not enforce the contract, even though the formal judgment of interdiction had not been pronounced at the time of the contract, if it be proven that the insanity which caused the interdiction existed when the contract was made. And it is sufficient for the purpose of Art. 402, O. 0., to establish that this insanity was of such a nature that no one seeing and conversing with the party could be deceived as to his condition. Fuzier-Herman, An. Code Civil, Yol. 1, 609, paragraphs 8, 12, 13; 32 An. 91; 32 An. 170.
    One who has accepted notes in settlement of a debt, and has credited same on his books as a settlement and has protested one of the notes, has novated the debt and can not repudiate such settlement and sue on the open account as it existed before the notes were given. Hennen’s Digest, authorities quoted, “ Novation;” II., 3, page 994, new edition.
    An insane person can not be held as'Ja partner in an establishment under articles which expired many years prior to his insanity, and in the management of which he took no part during his insanity, and from which neither he nor his estate derived any benefit.
    
      Henry P. Dart Attorney for Jacob Ittman, Defendant and Appellant.
   The opinion of the court was delivered by

Bkejaux, J.

Plaintiffs brought this action to recover the sum of two thousand two hundred and forty-six dollars and seventy-one cents and interest, they claim as due by the defendants, who are, they allege commercial partners.

They aver that it was for goods and merchandise sold by them to the defendants.

They declared upon an account and alleged in their petition, that in recognition of their indebtedness the defendants had furnished them with a number of notes, maturing at intervals of thirty days, which remain unpaid.

One of the defendants, George B. Ittman, had been interdicted at the date suit was brought. His curator was cited as party defendant.

After, suit had been instituted, this defendant died. His daughter, as testamentary executrix of his estate, was made defendant.

Each defendant pleaded a general denial. They separated in their defence.

No evidence was offered by the executrix.

The other defendant defended on the ground that he was not a partner, and offered evidence to prove that he was not responsible for the debts, as he was not, he contended, a member of the firm sued.■

The 'testimony discloses that in January, 1881, the two brothers, George B. and Jacob, formed a partnership to end on October 31, 1882. It was not expressly renewed at the end of the term stipulated.

The style of the firm under the contract of partnership was George B. Ittman, and the plaintiffs contend that the partnership continued by tacit reconduction, and that the goods, the price of which they sue for, were sold to a commercial firm of which George B. Ittman and Jacob Ittman were partners; that they were used by the firm in operating a barroom.

In the formal articles of partnership, it is stated that Jacob was the owner of one-half of the interest in the business, stock, fixtures, and appurtenances.

He put in the concern an amount stated, and thereby acquired a half interest.

The records do uot show that there ever was a final settlement made between the partners, and that the firm was dissolved at the time for its dissolution stipulated in the written agreement of partnership.

The business was conducted during all the years succeeding the stipulated term of the partnership as it had been conducted originally under the formal contract.

The prominent facts showing the continuance of the partnership are, that the property in which the partnership business was conducted was leased by the partners jointly.

That in a matter of bank accommodation Jacob Ittman represented himself as one of the partners, and as a partner obtained an extension of time for payment; that the debits and credits of the partnership accounts were kept, as they had been kept under the formal articles of partnership, and that Jacob Ittman received his portion as a partner; that he on different occasions acknowledged his interest as a partner.

After the sickness of his brother in 1892, he had entire charge of the business, to the date of his brother’s interdiction in June, 1893.

All the testimony, except his own, shows that his management was that of a partner.

His statement regarding the character of his management is not only contradicted by witnesses, but is inconsistent with the history of the business, as made manifest by the books of the firm.

The evidence of plaintiffs consists of their accounts sued on, and the notes signed by the defendant firm.

They also offered the interdiction proceedings in the snit in which one of the defendants was interdicted.

The note of evidence was closed, and after argument of counsel for both plaintiffs and defendants, the case was taken under advisement by the court.

While it was under advisement, the executrix filed a supplemental and amended answer and peremptory exception, in which she alleged, in substance, that plaintiffs could not recover on their accounts, for they held notes which had been introduced in evidence, and that these notes had been signed by the late George B. Ittman, after he had become notoriously insane; also that he was thus affected at the times (previous to the execution of the notes operating an acknowledgment) the goods, described in the open accounts, were sold and delivered.

On plaintiff’s motion, averring that it was not a peremptory exception, but an amended and supplemental answer, it was treated as of no effect and excluded from the' record. The District Court pronounced judgment for the plaintiffs and against both defendants in solido.

From the judgment both defendants have appealed.

BILL OP EXCEPTION.

The defendant Jacob Ittman, through his counsel, argues that the notes were signed by George B. Ittmann, and that there is no allegation that they were taken in error, that the suit was brought against the defendants as commercial partners.

He invites attention to the fact that, at the opening of the case he interposed the objection that, upon the face of the papers, it was an attempt to hold the defendant Jacob Ittman for another person’s debt, and that the open account had been novated. That this objection was overruled and a bill reserved.

Had the evidence supported the contention that Jacob Ittman was not a partner and that he was only an employé, the points urged would be unanswerable. The testimony leaves that theory of the defence unsustained by the facts. There was no error committed in admitting the testimony offered to prove that a partnership existed, and in not sustaining the plea of novation urged as an objection to the admissibility of the testimony.

THE EXISTENCE OP THE PARTNERSHIP.

At the risk of some repetition, we resume a statement of the facts regarding the partnership, as follows:

There was a partnership originally in the name of George B. Ittman.

This is undisputed.

The property belonged to the partners in equal shares.

There was no settlement of the partnership. .

The partner Jacob Ittman obtained extension of time for payment of partnership debts.

Those near him, occupying desks in one of the apartments occupied in conducting defendants’ business, looked upon him as a partner, because of his active management and control of the business.

He has actively and interestedly attended to the business of the partnership. He has drawn amounts from the partnership funds, not consistent with his statement that he was an employé.

His signature in one of the books.in evidence, together with that of his brother and copartner, at the end of the statements of amount received, indicate, not a receipt for wages, but an agreement between partners as to amounts received by one of them from the partnership funds.

MAY HAVE BEEN UNKNOWN AS A PARTNER AND YET RESPONSIBLE.

With reference to the knowledge of the creditors.

The responsibility of a partner may exist, though it was not known by the creditor that he was a member of the partnership.

Whenever the parties intend a partnership between themselves, they are, or at least may be held to be, partners as to third persons. Story on Partnership, Sec. 49.

The existence of a dormant partner may be unknown to the creditor, and yet he may be held liable to the extent of his responsibility as a partner. Lindley on Partnership, Vol. 1, p. 339.

The secret partner can escape liability only by the failure of the creditors to discover the relation he holds to the business. Chaffraix & Agar vs. Lafitte & Co., 30 An. 631.

Commercial partners are bound in solido. They were commercial partners and bound for the payment of the debt.

AN ANSWER INVOLVING ISSUE OR EAOTS RILED TOO LATE TO BE CONSIDERED.

The other defendant, the executrix, could not be heard to raise an issue of fact after the case had been argued and submitted for decision.

The question of insanity, vel non, of the late George B. Ittman at the time the debt" was contracted, was purely one of fact, and if the executrix desired to avail herself of that defence, it should have been seasonably presented.

But she contends that the record in the interdiction proceeding, introduced in evidence by plaintiffs without limitation, established more than the mere fact of interdiction and the appointment of a curator.

This manifestly was the purpose of plaintiffs in introducing this record.

The omitted limitation of the effect it should have is seized upon by the defendant as cause sufficient to enable her, some time after argument, to plead the absolute incapacity of the defendant at the dates the purchases were made.

We are compelled to decline all consideration of an exception tendered, going to the merits of the cause, on an issue of fact. It was really an answer. C. P. 419, 420; Boagni vs. Anderson, 32 An. 920; Cohn & Bruen vs. Levy, 14 An. 355; Guilbeau vs. Thibodeau, 30 An. 1099.

THE PLEA IS CONSIDERED UNDER THE GENERAL ISSUE.

This conclusion, however, does not exclude all consideration of the defence presented.

Had the plaintiffs, while proving their claim against this defendant, proved that he was notoriously insane, the executrix would have a right, under her plea, originally interposed, of general denial, to a judgment of non-suit.

THE EVIDENCE DOES NOT PROVE INSANITY AT THE TIME.

There is no proof of record that he was notoriously insane at the dates that the goods were sold to the defendant firm.

He became ill in October, 1892, and from that time his family seriously considered his mental condition.

It was only a short time prior to his interdiction that his mental condition became generally known.

THERE WAS NO NOTORIOUS CAUSE FOR INTERDICTION, NOR WAS IT PROVED THAT PLAINTIFFS KNEW OF ANY ABERRATION OF MIND.

It is announced in French jurisprudence, that acts anterior to the interdiction may be annulled, if there was notorious cause for interdiction at their date. Cass., 11th of March, 1862, S. 63, T. 136, pp. 63, 634.

Proof of a notorious cause for interdiction must be made, in order to defeat payment of goods purchased at their value in due course of trade. Laurent, Yol. 5, p. 376."

In the two cases cited by counsel for the defendant (Fecel vs. Guinault, 32 An. 91; Lagay vs. Marston, 32 An. 170) the insanity was evident and the causes for interdiction well known to those who were parties to the contract annulled.

The records disclose an entirely different state of facts in the case at bar.

The mental condition of the sadly afflicted man was, so far as appears of record, a cause of concern and sorrow to the family, becomingly undivulged, until secrecy was no longer possible.

PRICE OF GOODS NOT ALLOWED, PURCHASED FOR BUSINESS, AFTER CREDITOR WAS AWARE OF INSANITY, ONCE CAUSE FOR INTERDICTION HAD BECOME WELL KNOWN.

The defendant, in argument, urges that plaintiffs sued on the notes they hold and not on their account. The fact is, that they declared on their account; that without defence or objection on that score, they proved the correctness of the account, and used the notes in corroboration of its correctness.

Had they brought action on the notes they would not have recovered, for the drawer was notoriously insane on the first day of June, 1893, the date they were made.

The insanity of George B. Ittman was notorious on the first day of June, 1893, and the fact known to the plaintiffs on that day.

The price of the goods sold to him and charged to his account on that, and days subsequent, can not, under the law, be recovered, and to that extent the judgment must be canceled, in so far as he is concerned.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by deducting the sum of ninety-eight dollars and forty-six cents from the amount of twenty-two hundred and forty-six dollars and seventy-one cents the executrix was condemned to pay, and that in all other respects it be affirmed, with costs of appeal to be paid by the plaintiffs and appellees, and those of the lower court as directed in the decree.  