On the Mekits.
Assuming that a commercial partnership existed, as alleged by the plaintiff, we think that the defendant cannot be held liable under the indorsements, for want of due notice of the dishonor of the notes.
The partnership, if it existed, would have been dissolved by the death of Egana in 1860. C. C. 2847, 2851; Story on Part. sec. 317,319.
Manuel J. de Lizardi was appointed liquidator of the commercial firm, and he was put in possession of the property of the firm, which he proceeded to administer. Undér these circumstances to whom was it necessary to give notice of the dishonor of the notes 1 We think *359the notice should have heen given to the liquidator, who was in this case the surviving partner. Story on Bills § 305.
Mr. Justice Story says, “Notice to one of several partners is notice to all the partners, and tho notice may be given to any partner, either at his usual place of business or at his dwelling house, or at the usual place of business of the firm.” “In cases of partnership, notice sltould le given to the firm; but notice to either of the partners will he notice to the firm. * * * If, in case of a note of a firm, ono of the firm die, notice should he given to the surviving partner. Whether notice to the personal representative of the deceased would be valid does not appear to be settled by the authorities.” Story on Promissory Notes § 310. In his work on Bills he says, “ if one partner is dead, notice should be given to the survivor.” § 339; 2 Hill, p. 685.
Mr. Parsons says, “Notice to one member of a partnership which indorses a note or bill is notice to all, because each partner represents the interests of all the other partners and of the partnership, and the same has been held whore notice has been given after dissolution and publication. So if one of the firm dies before maturity, notice to the surviving partner is sufficient to hold the estate and legal representatives of the deceased.” Parsons’ Notes and Bills, vol. 1, p. 502.
The reason assigned by Mr. Parsons for holding that notice to one of the partners is notice to all is because he represents the other partners AND the firm.
• Who represented the partners and the firm after the appointment of Lizardi as liquidator 1 It would seem that the reason, upon which is based the rule which requires notice of non-payment to be given to the indorser, to wit: to enable him to tako the necessary measures to obtain payment from the parties respectively liable, would require the notice to be given to tho surviving partner, especially if he be the liquidator or representative of the firm. IIow could he know that the notes, of which the firm was indorser, had not been paid when due, if the holder gave him no notice of it 1 How was lie to know, without notice, that the holder looked to the indorser for payment? Tho executor had no power to administer the partnership affairs nor did he represent the partnership — how then could a notice served upon him be regarded as a notice to the firm or to the surviving partner f 4 R. p: 276; 7 R. p. 13.; 9 R. 124.
The only evidence in regard to the notices of protests is to be found in the certificates of the notary who protested tho notes. The first certificate states that the notary served the notice in the following manner: “by directing the one for Hugh M. Keary,. drawer and in-dorser, to him at Cheneyville, Louisiana, which letter I deposited prepaid in the post office in this city, on the same day of said protest, and by delivering the one for Juan Y. de Egana, in duplicates, one to J. M. Caballero, the testamentary executor of said Egana — the' whole by my deputy, Lawson L. Davis — on the day below written, and by *360delivering tlie one for Cora A. Slocomb to her personally, by Lawson L. Davis, my deputy, on the day below written.” The other certificate states that he notified the parties by directing the one for Hugh M. Keary in the manner stated above, and “ by delivering the notices for Juan Y. de Egana, as follows, to wit: one to Mr. Dubreuil, the partner of the agent of the liquidator of said firm of Juan Y. de Egana, and another to the book keeper of Mr. Caballero, executor of said Egana, at his office, he not being in on the day below written.'’
The first certificate shows that an attempt was made to notify the surviving partner or liquidator. The second certificate shows that an attempt was made to servo a notice on the liquidator, but the service was improperly made. In 9 Rob. p. 75 this court held that a certificate' that a notice was served “ by leaving it with the cashier of a banlc, the indorser’s elected domicile,” is insufficient — non constat that the notice was not given to him at some other place, or that it was addressed to him there. So a certificate that “ notice was given by a letter delivered to the indorser’s bar keeper, ho not being in” was held-to be defective in not stating that the service was made at the indorser’s residence, or place of business. 1 An. 95; 2 An. 759.
The certificate does not state where the notice was served on Mr. Dubreuil, the partner of the agent of the liquidator. “If notice be not given, it is a presumption of law that the indorsers are prejudiced by the omission.” Story on Bills § 284. And they are discharged from all liability.
But as it is possible that the notary did give the notice to the liquidator, and that this fact might be established on another trial, it might be our duty to render a judgment of non-suit only. This, therefore, obliges us to examine another question raised by the pleadings.
The plaintiff alleges that, at the time when the notes sued on were indorsed by Juan Y. do Egana, there existed a- general commercial partnership between Egana and Lazardi, carried on under the • firm name of Juan Y. de Egana, and that Lizardi is responsible, in solido, with the succession of Egana for them.
In 1848 a commercial partnership was established in the city of New Orleans, in which Manuel J. de Lizardi was a partner in commendam. The business was carried on in the name of Juan Y. de Egana, and the partnership was to terminate in September, 1853. The act of partnership was duly recorded. The affairs of this partnership had not been settled at the period when Egana died. In 1860, Lazardi gave a power of attorney to his nephew to liquidate the affairs of the firm in case of the death of Egana, and after the decease of Egana, Lizardi, through his agent, filed a petition claiming to be appointed liquidator of the firm, as the surviving partner in commendami.
The counsel for the plaintiff infers from this that there existed a commercial partnership — that, as it is proved that no written act of partnership existed or was recorded, other than the one which expired *361in 1853, therefore Lizardi was a general partner and he is bound, in solido, under the indorsement.
We are not prepared to adopt these inferences. It is not correct to say that because Lizardi thought and said, in 1860, tha the was a partner in commendam, when in truth he may not have been, therefore he was a general partner. His admission is that he was a partner in commendam. It would be illogical and unjust to construe this admission so as to make him a -general partner, if ho wore not what lie supposed ho was. The admission cannot bo divided. It cither establishes the fact that lie was a'partner in commendam, or nothing. Ilis opinion on the subject could not affect the facts, or the law governing the case.
The question is then presented for decision: Does the partner in commendam become responsible for the liabilities created by the active partner after the expiration of the term of the partnership in commen-dam, by failing to have a final settlement of its affairs, ipso facto ?
We say this is the question presented, for there is no proof, nor is it alleged, that, prior to the de.atli of Egana, .Lizardi interfered with the business of the concern, or permitted his name to bo used in it, or did any other tiling, which under the provisions of the Civil Code would make him responsible as a general partner. We do not deem it necessary to decide whether a partnership in commendam, once duly recorded, may be extended or prorogued after the limitation thereof fixed in the recorded act, without complying with the forms set forth in article 2849 of the Civil Code. Whatever might be the consequences of such a state of facts, as between the partners, we cannot sanction the-doctrine that one who has supposed that the partnership in commendam continued, in which he had placed his money, with the sanction of the law that he should nofe be responsible beyond that sum, should be held to be a general partner, and liable as such, without having done anything which could have induced creditors to believe that he was a general partner, or done or permitted any of the acts which the Code declares will render him responsible as a general partner. The Code says: “In no case, except as in hereafter expressly provided, shall the partner who has no other interest in the concern than that of a partner in commen-dam he Malle to pay any sum beyond that which he has agreed to furnish, by his contract.” C. C. art. 2813.
Here, then, is a textual provision of the Code supported by the well recognized principle that courts of justice cannot impose a penalty, which is not imposed by the law itself, which prohibits us from changing a partner in commendam into a general partner, except in the cases expressly stated. These cases are mentioned in articles 2816 and 2820, and they are the following: When the original contract has not been made in writing and recorded, or when the partner in commendam *362takes any part in tlie business of tlie partnership, or permits his name to bo used in tlie firm, or knowingly allows any single jicrson to whom lie has made the advance, to add any words or name or firm that may imply that he has other partners besides the partner in eommendam, when in fact he has none.
These views are supported by commentaters on the Code Napoleon and by the French tribunals. Dalloz says (v. 40, v. Société, p. 682, No. 1420): “ Les tribunaux n’ont pas admis cotte pretention. Ainsi il y á été jugó que, lorsque deux personnes qui avaient contráete,, pour un temps limitó (trois ans, par example) une socióté en commendite, ont, & l’oxpiration do ce temps, continuó pendant une année los affairs communes sur los bases prócédemment établies, mais sans remplir les formalités legales de publication, cetto continuation n’a pas changó, memo a 1’ égarde des tion, la qualitó des associés, et n’a pas ótabli de solidarite entro eux.” (Paris, 17 Avril, 1839). Delangle, vol. 2 pp. 223, 220.
This position seems to be in consonance with law and equity. In conformity with the law, because it is no where declared by the law that a failure to record the prorogation of the partnership shall chango the partner in eommendam to a general partner; and in conformity with equity, because having always confined himself within the limits prescribed by law to a partner in eommendam, third parties could have no pretext to claim that lie was ever bound otherwise than in tho manner shown by the recorded act of partnership in eommendam.
Wo think the defendant is not liable under the indorsements on tho notes mfcde by Juan Y. de Egana.
It is therefore ordered, adjudged and decreed that the judgment of this court rendered on the twenty-third day of June, 1868, be annulled, that the judgment of tho District Court be affirmed, and the appellant pay the costs of the appeal.
Mr. Justice Howell took no part in this decision.Note. — This case was pending on appeal before tho Supreme Court under the Constitution of 1864. On the twenty-third of June, 1868, a decision was had through Mr. Justice Ilsly, the organ of the court, sustaining tho plea of res judicata, and affirming the judgment of the lower court. A rehearing was granted by that tribunal, and the case' was transferred to the present court for examination on the rehearing. As tho first opinion is overruled by this decision its publication in tho reports íb omitted.