Drewry v. . McDougall , 145 N.C. 285 ( 1907 )

From a judgment for plaintiff, defendant Monroe appealed.

The facts sufficiently appear in the opinion of the Court. The defendant Monroe wrote, on 8 October, 1902, a letter to the mercantile agency of R. G. Dun Co., in response to their inquiry, in which he stated that he, with others named, was a member of the firm of B. S. McDougall. The defendant Monroe offered to prove that, in January, 1903, some three months prior to the time when the plaintiff sold this bill of goods to B. S. McDougall, he, the said Monroe, saw the duly authorized agent of R. G. Dun Co. at his town, and had a conversation with him, in which Monroe informed such agent that the letter to said R. G. Dun Co. on 8 October was an error; that neither he nor the others named in that letter had become members of said McDougall firm, and that none of them would be responsible for the debts of that firm, and at the same time gave the agent an oral statement of the financial condition of said firm, which the agent wrote down. It was error to exclude this testimony. Information of the letter of 8 October, 1902, was conveyed to plaintiff by said R. G. Dun Co., and the testimony is that the plaintiff sold the goods on such information. Monroe had a right to dissolve his contemplated connection with the McDougalls, and it was competent to show that, some three months before the plaintiff sold to said firm, and, therefore, in full time to correct its previous information, Monroe informed the agent of said R. G. Dun Co., in his town, that he was no longer a member of the McDougall firm nor responsible for its debts. The plaintiff had not, up to that time, become a creditor of the McDougalls, and did not for nearly three months later. Monroe could not, therefore, give the plaintiff notice. He did all he could when he gave notice to the traveling agent of said R. G. Dun Co., then in his town.

In Cowan v. Roberts, 133 N.C. 629, it was held that it was not sufficient to give notice of the retirement of a partner to an employee or bookkeeper at the home office of the seller, but the notice must (287) be given to the sellers themselves or their credit man. Here the defendant offered to show that notice was given to the traveling agent of R. G. Dun Co. (to which agency the original advice had been given) that Monroe was no longer connected with the McDougall firm. It was the plaintiff's own fault that it sold this bill, some three months later, without ascertaining whether there had been any change in the partnership or not.

If, before the withdrawal of Monroe, the plaintiff had had dealings with the McDougall firm, then, of course, notice of Monroe's withdrawal from the firm must have been given to the plaintiff. It would be entitled to rely upon the status remaining unchanged until notified to the contrary. But here the first sale was made to the McDougalls long subsequent to Monroe's withdrawal. He could not anticipate that the plaintiff would become a creditor, and he should have been allowed to show, as he offered, that in January, 1903, he notified R. G. Dun Co., withdrawing the statement made to them in his letter of 8 October, 1902.

Error.

Cited: Rheinstein v. McDougall, 149 N.C. 253.

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