Maryland Casualty Co. v. Little

MARKS, J.

Respondent instituted this action against defendants to recover judgment upon a promissory note dated August 6, 1923, given by Leroy Little, and signed by him “Leroy Little Wo,” by the terms of which the maker promised to pay respondent $2,412.13, with interest at six per cent per annum, together with attorney’s fees in the sum of ten per cent of the principal and accrued interest, in case suit was instituted to collect such note. A second cause of action was abandoned by respondent at the time of trial. Judgment was rendered in favor of respondent for the principal sum of the note only, as it waived interest and attorney’s fees.

The complaint alleged that the defendant Leroy Little Wo was a copartnership consisting of Leroy Little and Walter K. Bowker, Sr., and as such executed the note in question. The defendant, Leroy Little, did not appear, and judgment went against him by default. Appellant, in his answer, alleged that the partnership between himself and Little had been dissolved and ceased to exist long prior to the date of the note, and denied that it was a partnership obligation, and that anything was owed to respondent by him. The trial court found that the partnership had not been dissolved at the date of the note, and that it was a partnership obligation, and rendered judgment accordingly.

[208]

The appellant presents numerous assignments of error upon which he relies for a reversal of the judgment, but as they largely center around the question of the date of the dissolution of the partnership, it will be necessary to consider but three of them, namely, (1) When was the partnership dissolved? ' (2) Had Leroy Little any authority to sign the partnership name to this note on August 6, 1923? (S') Are there any facts in the record which would estop appellant from asserting the dissolution of the partnership, and the lack of authority on the part of Leroy Little to sign the partnership name to the note?

There was very little conflict in the evidence before the trial court. It was not disputed that in the year 1919 Leroy Little and Walter K. Bowker, Sr., entered into a partnership under the name of Leroy Little Wo for the purpose of conducting business as grading contractors operating in the Imperial Valley and Mexico; that the property of the partnership consisted principally of horses, mules, harness, grading machinery, tools and other such equipment incident to the partnership business; that all the contracts were taken in the name of Leroy Little who had active charge and management of the business; that the partnership carried workmen’s compensation insurance in large amounts with respondent as insurance carrier; that the policies were written through H. H. Griswold, deceased at the time of the trial, with Leroy Little named as the sole beneficiary in all of them; that, the premiums were 'all charged on Griswold’s books to Little individually; that during the life of the partnership Little carried on farming operations of his own and also did some grading independent of the partnership work; that the insurance policies covered three classes of work, namely, farm labor, grading and irrigation work; that the principal sum of the promissory note was computed from the unpaid portions of insurance premiums issued to Leroy Little by the respondent as insurance carrier as follows: Policy No. 150217, term January 24, 1920, to January 24, 1921, balance unpaid, $2,353.75; policy No. 199904, term January 24, 1921, to January 24, 1922, balance unpaid, $152.60; total $2,506.35, less $94.22 unearned portion of the advance premium paid on policy No. 223931, term January 24, 1922, to January 24, 1923, leaving a net balance of $2,412.13 unpaid at the date of fh§