Kenney v. Altvater & Co. ex rel. Marks , 77 Pa. 34 ( 1874 )

Mr. Justice Meboub

delivered the opinion of the court,

We discover no merit in the first three assignments of error.

The fourth assignment involves the validity of the payment made by the plaintiff in error.

Altvater and Marks constituted the firm of Altvater & Co. When the bill of goods was purchased, for which Marks now claims to recover, they were engaged in business as stonemasons; they were also contractors in the erection of buildings. As such they were purchasing and using stone. Altvater sold the goods to the plaintiff in error under an express agreement that they should be paid for in stone the next spring; The stones were delivered at the time specified and accepted by Altvater. In the intermediate time the firm had been dissolved. Altvater used these stones for his individual purposes. If the firm had not been previously dissolved, the delivery of the stones to one of the partners in pursuance of the contract, would have unquestionably been a good payment. The contract of their purchase by Altvater was within the general scope of the partnership business. ' The payment thus made by the plaintiff in error was in fulfilment of the contract. The misapplication by one of the firm did not impair the validity of the payment. Nor did it matter that the payment was made to Altvater after the dissolution, if it was made without notice thereof.

The learned judge makes a distinction between a delivery to Altvater and one to Altvater & Co. A delivery in fact to one of the partners in good faith according to the contract, was in law a delivery to both. Each member of the firm had authority to receive the payment thus made. The receipt of one was the receipt of both. The distinction under the evidence, we think, is unsound, and this assignment is sustained.

The fifth assignment relates to what notice of the dissolution is necessary to affect one previously dealing with the firm. The effort was to charge the plaintiff in error with notice by proof that a letter duly mailed to his address was sent by Marks’s bookkeeper, notifying him of the dissolution and requesting payment of the bill of goods to be made to Marks. This was followed by proof that the letter was not returned from the Dead-Letter office. There was no proof going to show that notice was given in any other manner. Hence, if any actual notice was received, it was personal notice. He was entitled to actual notice : Stoi*y on Part., § 161; Watkinson et al. v. Bank of Pennsylvania, 4 Wharton 482; Brown v. Clark, 2 Harris 469. Letters properly directed and duly mailed are sufficient evidence of notice of the dishonor of bills or non-payment of negotiable notes. This rule is restricted to commercial paper. It establishes no such legal conclusion in other business relations : Tanner v. Hughes, 3 P. F. Smith 289. Hence in First Nat. Bank of Bellefonte v. McManigle, 19 P. F. Smith 156, it was held that there is no presumption of law that a letter directed and mailed to one at the place where he usually received his letters, was received by him. It is nevertheless a step towards proving actual notice. With slight corroborative evidence, a jury might be justified in finding such notice.

While the learned judge did say in answer to the second point submitted by the plaintiff in error, that whether a person has actual knowledge of a dissolution is a question of fact for the jury, and that knowledge, however acquired, generally renders notice unnecessary, yet it is not such an answer as the point demanded. The court was asked to charge that “ proof of a notice sent by mail is not sufficient, without proof that the same was received by the defendant.” The answer was not specific. It was calculated to divert the attention of the jury from the only form of notice of which there was any substantial proof. In not affirming this part of the point, the court erred, and to that extent the assignment is sustained.

Judgment reversed, and a venire facias de novo awarded.

Mr. Justice Shakswood dissented from the point as to notice of dissolution.