
    S. LONG & C. B. BERRY v. J. R. GARNETT et al.
    SUPREME COURT,
    AUSTIN TERM, 1883.
    
      Promissory Note — Secondary Evidence — Practice.—A promissory note sued on is the best evidence, line if a defendant permits see-on da j’y evidence to be in trod need without objection, he cannot, make objection for the first time tt| on appeal.
    
      Same — Contribution.—Theta must be an actual payment, of the joint debt before one paitner can «cover contribution of his co-part tiers.
    
      Same — Partnership.— After dissolution one of the partners camiot impose new obligations upon the firm lint when a parry 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 mime in settlement of a partnership debt, the partnership will be considered as still existing at the date of the note. Whether the party had knowledge ot the dissolution is a question of fact for the jury.
    Where, the court below passes upon a question of fact, and the judgment not being clearly wrong, it will not be disturbed.
    This was a suit by defendant in error. Garnett, against appellants and Ed. Long and James MeBath, charged its partners, using the firm name of Long, Berry & MeBath, which firm name was signed to the note sued on. Defendants, Ed. Long and MeBath, pleaded that the note was signed long after the dissolution of the said firm, and was so signed without their knowledge or consent. Judgment was rendered in favor of plaintiff against appellants, and that Ed. Long and MeBath go hence, etc. The opinion exhibits the errors assigned.
   Opinion by

Delany, J.

The first assignment of error raises the objection to the judgment, that ¡is 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 ho permits secondary evidence to be introduced upon the trial without objection, lie camiot make the objection for the first time upon appeal. On tho 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 this competency of the evidence, the only question which we could consider lvould be, whether it was sufficient to sustain the judgment. We have no doubt l hat 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 McBath 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 plaintiffs recovered against one member of a Ann 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 plaintiffs upon the preceding appeal upon the ground that when tho 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 apart, and and arc liable to pay the whole of a debt due by the firm, toward which the other members ought to contribute. Ordinarily a suit for contribution cannot be maintained in favor of one partner against bis co-partners daring 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 propoitúrnate parts.

Thus, in a case in Pennsylvania, A and 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 and 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 and Sergt., 235.) The cases seem to hold that there must he 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 liare 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, Me Bath 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 mere 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 existing1 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 bv the jury, or by the judge in the. absence of a jury, whether the party knetv of the dissolution when ho 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 were some other circumstances from which the court might come to the conclusion that the plaintiff was informed of this 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 eases cited ; see also Deford v. Reynolds, 36 Penn. St., 325.)

Our -opinion is therefore that- the judgment should bo affirmed.

[Adopted.]  