
    Sam Long and C. B. Berry v. J. R. Garnett et al.
    (Case No. 3631.)
    1. Evidence — Practice.— In a suit on a promissory note, the note itself must be produced in evidence, or its absence accounted for; but if secondary evidence of its contents be admitted without objection, the failure to produce the note cannot be urged for the first time on appeal. Robinson v. Brinson, 20 Tex., 438, cited and construed.
    2. Contribution — Partnership. — There must be an actual payment of a firm debt by one partner after dissolution before he can maintain an action for contribution against the other.
    
      8. Partnership.— While one of two or more partners cannot impose a new obligation on the firm after its dissolution, or vary, so as to bind the firm, the character of its existing contracts, yet, when one who has dealt with the firm during its continuance as such, receives from one of its members, after its dissolution, but ignorant thereof, a note in payment of a firm debt, the firm will be bound for its payment. Davis v. Willis, 47 Tex., 154, and Tudor v. White, 27 Tex., 584, followed. It is always a question of fact for the jury to determine whether the payee had notice or not of the dissolution.
    Appeal from Lamar. Tried below before the Hon. B. B. Gaines.
    Suit by J. B. Garnett against Sam Long, O. B. Berry, Edward Long and James N. McBath, comprising (as the petition alleged) the firm of Long, Berry & McBath. It was brought upon the following note:
    
      “ $875. Paris, Texas, August 13, 1868.
    ■ “ One day after date we promise to pay Joseph B. Garnett eight hundred and seventy-five dollars, for value received.
    (Signed) ■ “Long, Beret.& McBath.”
    The following credits were indorsed upon the note: $252.50, paid September 20, 1870; $247.67, paid March 3, 1871.
    November 19, 1873, the defendants Sam Long and O. B. Berry answered by a general denial.
    November 21, 1873, the defendant Edward Long filed a plea of non est faotum under oath, in which he denied the execution of the note by him, or by his authority; that he was a member of the firm of Long, Berry & McBath, or that there was any such firm in exist-ence at the date of the note.
    The defendant McBath adopted this answer.
    November 26, 1873, the defendants Sam Long and O. B. Berry amend and say that the note in suit was executed by the defendant O. B. Berry in settlement of all accounts between the plaintiff and the firm of Long, Berry & McBath; that the firm had not been dissolved when the note was given; that Sam Long had paid on the note $252.50, and Berry had paid $248.67; that these were the proportionate parts of the note due by them. And prayed that, if judgment should be rendered against defendants on the note, execution might issue first against their co-defendants.
    November 3, 1875, defendant Edward Long amended by plea of payment, and further that the note in suit was not given for a partnership debt, but in payment of a debt of defendant Berry to plaintiff.
    This answer was adopted by defendant McBath.
    It appears, from the statement of facts (prepared by the judge), that the firm was organized in 1859 to do a general mercantile business, but they traded in almost every species of property. At the close of the jrnar 1866, or the beginning of 1867, the partnership ceased to exist; the property was. verbally partitioned among the members, each taking his share and going into business apart from the others.
    Deeds of partition, however, were not made until 1869. The note was executed by defendant Berry at the instance of Sam Long, and without the knowledge or consent of the other two. There was no evidence in the record that the note was produced on the trial.
    The cause was submitted to the court, and judgment rendered for plaintiff against the defendants Sam Long and Chas. F. Berry for $542.47 principal, and $267.61 interest; but that as to the other defendants, the plaintiffs should take nothing. Defendants Berry and Sam Long appealed.
    . The assignments of error were:
    1st. The evidence did not warrant the judgment, the note not having been introduced in evidence.
    2d. The judgment is excessive.
    3d. The court should have rendered judgment against the other two defendants upon the cross-bill of appellants.
    
      Wright & McDonald, for appellant,
    cited on the question of evidence, Cotton v. Jones, 37 Tex., 34; Moffatt v. Sydnor, 13 Tex., 628; Coles v. Perry, 7 Tex., 143; Robinson v. Brinson, 20 Tex., 440.
    On liability of appellants as partners, White v. Tudor, 32 Tex., 758.
    
      Hale & Scott, for appellees,
    cited White v. Tudor, 24 Tex., 641.
   Delany, J. Com. App. —

The first assignment of error raises the objection to the judgment that, as there was a general denial, it was . necessary for the plaintiff to produce the note, and as that was not done the judgment cannot be sustained. Robinson v. Brinson, 20 Tex., 438..

The rule stated in that case is .well established, but • it simply means that the note itself is the best evidence, and the opposite party may demand that it be produced or its absence accounted for. But if he permit secondary evidence to be introduced upon the trial without objection, he cannot make the objection for the first time upon appeal.

. On the trial below both these appellants were introduced as witnesses for the plaintiff, without objection by them, and upon their-testimony the judgment was rendered. As no objection was made below to the competency of the evidence, the only question which we could consider would be whether it was sufficient to sustain the-judgment. We have no doubt that it was.

The second assignment is so vague that we .do not feel called upon to consider it.

The third assignment is that the court erred in not rendering-judgment against the defendants Edward Long and MoBath upon the cross-bill of appellants.

The authority to which we are referred is White v. Tudor, 32 Tex., 758. The case does not sustain the position of appellants. There the plaintiff recovered against one member of a firm upon a note executed by the other member a few days after the dissolution. The case had in effect been decided in favor of the plaintiff upon the preceding appeal, upon the ground that when the note was executed the plaintiff had no notice of the dissolution. 27 Tex., 584. In the case to which appellants refer, the learned judge merely gives some additional reasons of an equitable character why the judgment should be affirmed.

But the claim here set up by appellants is that they have paid a part, and are liable to pay the whole of a debt due by the firm, towards which the other members ought to contribute. Ordinarily a suit for contribution cannot be maintained in favor of one partner against his copartners during the existence of the partnership. Parsons on Part., 285-87, and notes. But it has been held that-when, after the dissolution of the firm, one of the members has-been compelled to pay a partnership debt, he may, by suit, compel the others to pay their proportionate parts.

Thus, in a case in Pennsylvania, A. & B. were partners. A. made a note in the firm name, and before its maturity the firm was dissolved. Some years afterwards the holder of the note brought suit against A. & B., late partners, and recovered judgment. B., under a threat of execution, paid off the judgment, and brought suit against A. for contribution. It was held that the suit was well brought. Brown v. Agnew, 6 Watts & Serg., 235. The cases seem to hold that there must be an actual payment of the joint debt before one partner can recover contribution. Parsons, p. 287, note s.

We might, perhaps, rest our decision here, as appellants have not, paid the entire debt. But waiving this point, it is clear that the right to recover contribution rests upon the ground that one or more of the partners have discharged an obligation which was binding upon the firm. If, therefore, the court below was correct in holding that the defendants McBath and Edward Long were not bound to pay the note, then appellants were not entitled to contribution. "We will therefore inquire into the correctness of that, judgment.

It is well established, that, after the dissolution of a partnership,, one of the members cannot impose new obligations upon the firm, or vary the character of those already existing. He cannot give a new note in the firm name, or renew one given before the dissolution. White v. Tudor, 24 Tex., 639.

But when a party has had dealings with a partnership, and after the-dissolution, but in ignorance thereof, receives from one of the members a note in the firm name in settlement of a partnership debt,, the partnership will be considered as still existing at the date of the note. Tudor v. White, 27 Tex., 584; Davis v. Willis, 47 Tex. 154.

But it is a question of fact to be found by the jury, or by the-judge in the absence of-a jury, whether the party knew of the dissolution -when he received the note. Tudor v. White, supra Parsons, p. 413, and note.

In the case before us, the evidence of previous dealings between the plaintiff and the firm is vague and indefinite; nearly two years elapsed between the dissolution and the execution of the note, and there ivere some other circumstances from which the court might-come to the conclusion that the plaintiff was informed of the fact. And the court below having passed upon the question of fact, we-cannot by any means say that the judgment is clearly wrong. Stroud v. Springfield, 28 Tex., 677, and cases cited. See, also, Deford v. Reynolds, 36 Pa. St., 325.

Our opinion is, therefore, that the judgment should be affirmed.

Aeeiemed.

[Opinion approved April 17, 1883.]  