Seldner v. Mount Jackson National Bank

Robinson, J., delivered the opinion of the Court. The appellee is the holder of a promissory note for $3500, dated March 5th, 1885, drawn by G-. S. P. Triplett, and payable four months after date to the order of L. Seldner & Son. The note was endorsed by L. Seldner & Son and discounted for them by the Merchants’ Bank ’ of Baltimore, and was sent to appellee Bank for collection» A few days before its maturity, the appellee wrote to the chief clerk of the firm of L. Seldner & Son in regard to the payment of the note, and on the 8th July, 1885, the day of its maturity, received the following telegram: “If G-.

S. P. Triplett will meet his note due to day, he can draw on me for the amount. L. Seldner.” On the afternoon of the same day, the appellee received another telegram as follows: “Have learned that Triplett is away from home. If he has not left draft with you, you will please pay note and save protest, you can draw on me. Answer.

L. Seldner.” ⁴⁹² As requested, by this telegram, the appellee paid the note for and on account of L. Seldner & Son, and on the same day drew a draft on them, which was retured “unpaid.” Afterwards at his request the appellee drew a draft on L. Seldner which was also returned “ unpaid.” This suit is brought by the appellee, against Eva Seldner and Lippman Seldner, her son, partners trading as L. Seldner & Son, to recover the amount due on said note. At the time the note was drawn and endorsed, and discounted by the Merchants’ Bank, the appellant, Eva Seldner and Lippman Seldner were, and for several years prior thereto, had been partners trading as L. Seldner & Son. The partnership however was dissolved by mutual consent in April, 1885, and notice of the dissolution was published sometime in the month of July following, the precise date •of the same, whether before or after the 8th of July, the day of the maturity of the note does not appear. In our view of the. case this is immaterial.

Now a great deal was said about the power of one partner, to bind his copartner, after dissolution of the partnership, and the case was argued on the part of the appellant as if the suit was brought upon a nexo contract made between Lippman Seldner, the settling partner, and the appellee, after the dissolution of the partnership. This however is not the case. The suit is brought on a note endorsed by and discounted for the firm, and upon which all the partners were liable. The appellee was bound of course to give notice of demand and non-payment by Triplett, the maker; and the only questions are, 1st.

Whether Lippman Seldner, one of the ■ partners, had the right after dissolution of the partnership, to waive notice of demand and non-payment? and 2nd. Whether the telegrams of July 8th, are to be construed as a waiver ? That he had the right to waive demand and notice, so long as the partnership continued, is clear; and we see no good reason why the mere dissolution of the partnership, ⁴⁹³ should operate as a revocation of his authority. It operated no, douht, as a revocation of all authority on his part to hind his former partners by new contracts, but it did not revoke his authority to adjust, liquidate and settle the partnership affairs.

The note was in the hands of the appellee for collection, and all the holder was required to do, in order to bind Seldner & Son the endorsers was to make demand on the maker, and in default of payment to give notice to the firm or to one of the members of the firm. And if Lippman Seldner, the settling partner, knew the maker was unable, or did not mean to pay the note, and that demand upon him would therefore be useless, he certainly had the power to waive demand and protest and thereby save the note from dishonor. In so doing, he does not make a new contract, nor does he incur a new liability,