[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 575 Moses Krohn and Leopold Feiss, wholesale merchants at Cincinnati, Ohio, doing business as partners, under the firm name of Krohn, Feiss Co., brought to the June term, 1883, of the Adams county circuit court, an action of assumpsit, against John Meyer, Moses Bachrach, Solomon Hoffheimer and Eva Hoffheimer, as partners, lately doing business at Galesburg, Illinois, under the name and style of Hoffheimer Co. The declaration was in the usual form, containing the common counts and six special counts, on bills of exchange payable to appellees, and drawn by them upon and accepted by Hoffheimer Co. The bills were given at different times, in due course of trade, for goods and merchandise sold by the plaintiffs to the defendants. The first of these bills bears date August 12, 1879, and the last, November 25 of the same year, and the whole series, interest included, together with a small account, amounts, in the aggregate, to near $1100. The Hoffheimers made no defence. The appellants severally filed pleas in abatement, denying the partnership at the time of making the bills of exchange and the purchase of the goods sued for. The plaintiffs traversed these pleas, and also severally replied, in substance, that appellants, on the 1st day of January, 1878, and for two years prior thereto, were members of the firm of Hoffheimer Co., during which two years appellees had sold goods to said firm, and that at the time of making the said bills of exchange, etc., appellees had no notice that appellants had ceased to be members of the firm of Hoffheimer Co. Appellants took issue on these replications, and also severally rejoined that they were, during the said two years, as between themselves, partners, under the firm name of John Meyer Co., and that this firm and their co-defendants composed the firm of Hoffheimer Co., and that the appellants were not otherwise members of the latter *Page 581 firm. The court sustained demurrers to these rejoinders, and the appellants stood by them. By a second rejoinder the appellants severally alleged that at the time of the making of the alleged promises sued on, the appellees did have notice of the withdrawal of the appellants from the firm of Hoffheimer Co., concluding to the country. The cause was then tried upon the issues formed as above stated, resulting in a verdict and judgment in favor of plaintiffs, for $1093.21. On appeal to the Appellate Court for the Third District this judgment was affirmed, and the present appeal brings before us for review the judgment of the latter court.
The first point made by appellants questions the correctness of the ruling of the trial court in sustaining a demurrer to appellants' rejoinder to appellees' second replication. We have no doubt of the soundness of the ruling of the court on that question. Had the rejoinder concluded with the denial contained in it of the averment in the replication, to the effect that appellants had been members of the firm of Hoffheimer Co., it would have been good as a mere traverse of the replication. But the effect of this denial, considered as a mere traverse, is entirely neutralized by the additional allegation "that the said firm of Hoffheimer Co. was composed of the said Solomon Hoffheimer and Eva Hoffheimer, and the said firm of John Meyer Co." Now, as the firm of John Meyer Co. could have no existence outside of the appellants, who composed it, the conclusion is manifest that they were also members of the firm of Hoffheimer Co., — so that in truth the rejoinder, instead of presenting any defence to the matter set up in the replication which it assumed to answer, was and is, when taken as a whole, a substantial admission of the facts therein stated. In thus holding, we at the same time recognize the right of a third party to contract with a particular member of a firm for an interest in his share of the profits without making himself a member of the firm. Thus, if A and B are partners, C may purchase an interest *Page 582 in A's share of the profits without making C a partner with A and B. But the rejoinder in question presents no such case as this. As indicated by the pleadings, and as the evidence tends to show, appellants were members of the firm of Hoffheimer Co. prior to the 2d of January, 1878, and, as such rnembers of the firm, were customers of appellees. On that day appellants withdrew from the firm, but the business continued to be carried on by the Hoffheimers just as it had been before, and as claimed by appellees, without any notice of appellants' retirement from the firm. Whether appellees had such notice or not, was put directly in issue by the pleadings, and this was the controlling question in the ease. The question of fact thus put in issue has been decided adversely to appellants, and this court is not permitted to review it.
Appellant Bachrach, when upon the stand as a witness, after having testified very fully as to his and Meyer's withdrawal from the firm, and to the fact of having given to appellees both general and special notice of such withdrawal, was asked this additional question: "State what other steps you took to notify the parties with whom the firm of Hoffheimer Co. had been dealing, of the dissolution of the firm," — which the court, on objection, held improper, and this is assigned for error. The question was clearly objectionable, on the ground it assumed that some other steps than those mentioned had been taken. But waiving this objection, it is clear the appellants could not have been injured by the ruling of the court in this respect, for, as just stated, the witness had already fully set forth, with great particularity, the fact of notice, and the different ways in which it had been given. Moreover, the same question, differing somewhat in form, was subsequently put to and answered by the witness.
It is also objected the court erred in refusing to permit the articles of co-partnership to be read in evidence to the jury. Had they been offered by appellees, we are of opinion they would have been competent evidence under their first replication, *Page 583 which simply put in issue the pleas of the defendants denying the partnership. But how the appellants could have been injured by the ruling of the court it is difficult to perceive. Upon the issue made by the first replication the appellees were bound to prove the partnership, and the articles of partnership themselves were certainly the most available evidence for that purpose. So far as that issue is concerned the admission of them in evidence, at the instance of appellants, would have been but permitting them to establish appellees' case. The fact the court refused to allow them to do this, certainly affords no ground for complaint on the part of the appellants. So far as the issue made by the second rejoinder to the second replication is concerned, the fact that the partnership existed up to the 2d of January, 1878, is admitted on the record by both parties, and hence the evidence offered was irrelevant under that issue.
The point is also made that the court erred in refusing to permit Jacob Hoffheimer, a witness on behalf of appellants, to detail a conversation which he claimed to have occurred, only a month or so after the dissolution, between himself and Joseph Gideon, an alleged traveling salesman of appellees. The object of the proposed evidence was to prove appellees had notice of the dissolution of the partnership. There is nothing in this objection, for the record clearly shows that so far as notice could be established in this manner by Hoffheimer's testimony, it was done. He says: "Representatives of the house of Krohn, Feiss Co. visited Galesburg after this dissolution. We have been dealing with them right along. Joseph Gideon, one of them, to the best of my recollection, — I can't say exactly when, — visited Galesburg on one of his regular trips, — it must have been two or three months after the dissolution. On this trip I had a conversation with him in reference to the dissolution of the firm. I think he (Gideon) had knowledge of the dissolution, from. a personal conversation I had with him. * * * When I notified him of this dissolution, *Page 584 Gideon was representing the house of Krohn, Feiss Co., and selling goods for them. The new firm of Hoffheimer Co. bought goods from Krohn, Feiss Co. through Gideon, at that time. These goods were shipped to and received by Hoffheimer Co., and a bill was rendered for them. At the time of the conversation above alluded to, we spoke about the matter of the dissolution of the firm, and Gideon said that the credit would be just as good for the new firm, or something to that effect. I asked him if he thought the credit would be just as good as before the Quincy house withdrew, and he thought it would." Thus, notwithstanding the ruling of the court complained of, it is clear this witness told all he knew on that subject, and the conversation as to other matters, of course, would have been improper. Moreover, the weight of evidence seems to show that at the time of the alleged conversation Gideon was not in the employ of appellees at all, and they consequently would not have been bound by anything Hoffheimer may have told him. In addition to all this, the court afterwards told the witness he could state to the jury the whole conversation between him and Gideon, so there is not the slightest cause for complaint on the ground suggested.
Other points are made in appellants' brief, of a similar character, none of which we regard as well taken, or of sufficient importance to require special notice.
The evidence relating to the question of notice of appellants' withdrawal from the firm is circumstantial, and by no means conclusive. That a general notice was prepared and inserted in a newspaper published in Galesburg, at the time of their withdrawal, is conceded, and that a copy of this notice was mailed at Galesburg by appellants, in an envelope properly addressed to appellees at Cincinnati, their place of business and residence, is proven by the testimony of appellants. That no such notice was ever received by appellees is established just as clearly by their testimony. This question, with *Page 585 other questions of fact, was properly left to the jury. If, as matter of law, in order to relieve appellants from further responsibility, it was necessary for them to prove, not only the preparing and mailing of the notice of their withdrawal, but also that it was actually received by appellees, then, for the purpose of supporting the judgment below, we must assume that the jury found, as matter of fact, that the notice was never received. The important question in the case, so far as this court is concerned, is, whether the law is as just suggested, and this question is presented by the instructions, both given and refused.
The court, on behalf of appellees, instructed the jury, in substance, that although they might believe, from the evidence, that the appellants prepared and sent, in a letter or envelope properly addressed to the appellees at Cincinnati, a notice of their withdrawal from the firm, yet if they further believed, from the evidence, that appellees never received such notice, and that neither they nor their lawfully authorized agent otherwise received notice, or had knowledge of such withdrawal or dissolution of the firm, then the appellants had failed to establish notice, within the meaning of the law. On the other hand, the court refused to instruct the jury, at the instance of the appellants, that it was sufficient, for the purpose of establishing notice, to prove the preparing and sending a notice in the manner above stated. We have no doubt of the correctness of the ruling of the court on this subject. The general rule, as we understand it, is this: As to persons who have never had any business transactions with the firm, notice by publication is sufficient; but as to those who have had previous dealings with it, actual notice, or its equivalent, must be shown. This rule seems to be supported by an unbroken current of authority, and it is certainly promotive of justice and fair dealing. To hold that the mere mailing of notices to patrons of a firm is sufficient, without regard to whether they were ever received or not, as *Page 586 is claimed by appellants, would be to establish, by judicial legislation, a species of constructive notice hitherto unknown to the law, so far as we are advised. It is doubtless true that proof of the mailing of notices, properly addressed, is prima facie evidence of their having been received by the party addressed; but this is a mere presumption of fact, which may be rebutted, as was done in this case. To give it the effect contended for, would be to declare it a presumptiojuris et de jure, for which we find no authority. Moreover, it would be but to invite the grossest frauds upon distant merchants, who would have no adequate means of protecting themselves. We prefer to leave the question with the jury, where we understand the law leaves it, unfettered and unembarrassed by any artificial rule of evidence that might prevent them from finding the real truth.
Perceiving no cause for disturbing the judgment of the Appellate Court, it will therefore be affirmed.
Judgment affirmed.
Mr. JUSTICE SHOPE took no part in the consideration of this case.