Scottish Court of Session Decisions

The Lord Ordinary pronounced this interlocutor:—“Finds that prior to November 1878 the defender Eobert Girdwood was a partner of the firm of Girdwood & Forrest, wool-brokers in Glasgow; that the only other partner of the said firm was the defender Thomas Forrest, and that in 1878 the said firm was dissolved: Finds that the said defender Eobert Girdwood is not, and never was, a partner with the defenders Thomas Forrest and William Wade Sykes in the firm of Girdwood & Forrest, whose estates were sequestrated on the 11th of October 1881: Finds that the defender Girdwood is not liable jointly with the other defenders in the sums sued for, therefore assoilzies the defenders from the action as laid: Finds the defender Eobert Girdwood entitled to expenses,” &c.

“ Opinion.—It is not disputed that the defender Mr Girdwood will still be liable to the pursuers in the same manner as if he had continued to be a partner of the firm of Girdwood & Forrest if he has failed to give due notice to them of the dissolution of the partnership between him and Mr Forrest, and if they have continued to deal with the firm as before in ignorance of the change. There can be no doubt that in a question with persons who have had previous dealings with the firm a Gazette notice is insufficient unless it can be brought home to the knowledge of the customer. The first question, therefore, is, whether the defender is relieved of his responsibility by reason of his having given direct notice of the dissolution to the pursuers, or either of them. It must be taken as settled that intimation by a circular letter traced to the possession of the customer, or duly posted with a proper address, is good notice; and upon the evidence I think it proved that the circulars of May 1883 and 1884 were properly addressed and duly posted to the pursuer Mr Menzies, and that the circular of May 1884, although it is not proved to have been sent to him by the defender, was seen by the pursuer Mr Black. Mr Menzies, however, denies that he received either of the circulars; and it does not appear to me that the circular of 1883 is so conceived as to throw upon him the onus of proving that, although duly posted, it was not in fact delivered at his address. It is a document of some length, and mainly concerned with other matters; it does not bear to proceed from the Glasgow firm of Girdwood & Forrest, and I think it very possible that it may have been opened and partially or cursorily read, although it could not have been attentively read through without the reader becoming aware that it contained an intimation of the dissolution of the firm. If it is incumbent upon a retiring partner to give notice of his retirement to the customers of the firm, I think it follows that he must do so in such a form as to call their attention to the statement of dissolution, or at least to the fact that the letter which he has addressed to them relates to the concerns of the firm. He is not entitled to assume that a printed document of some length, which bears on the face of it to be an ordinary trade circular as to markets, and does not bear to come from the firm, will be read from beginning to end by every customer to whom it may have been addressed. I am of opinion, therefore, that the circular of 1883 is not sufficient notice to relieve the defender of his responsibility; nor do I think that Mr Black is precluded from founding upon the defender's failure to give notice by reason of his having heard a rumour of the defender's retirement in 1883. He was entitled to expect that as a customer of the firm he would receive notice of the retirement, and was therefore entitled to assume that the rumour was unfounded or premature until he heard to the contrary from Mr Girdwood himself; and it is admitted that he received no notice from him until he had had an opportunity of seeing the circular of 1884.

This second circular is in a different position from the former, because it was impossible from its form and the manner in which it is printed that anyone who looked at it should fail to see that it contained a statement of the dissolution of the firm. It appears to me, therefore, to be perfectly sufficient. The result is that neither of the pursuers is entitled to hold the defender responsible for the transactions of the firm subsequent to May 1884, but that both will be entitled to hold him liable for transactions prior to that date, if they are not barred from maintaining their right by the manner in which they have stated their claims against him and against the sequestrated firm. But I am of opinion that assuming Mr Girdwood's liability to the extent I have mentioned, the pursuers are not entitled to decree in the actions as laid.

It appears that after Mr Girdwood's retirement, Mr Forrest, who had acquired his interest in the business, assumed a new partner, Mr Sykes, and continued to carry on the business in partnership with him under the old firm name. Mr Girdwood was never a partner of the new firm so constituted, and knew nothing of the assumption of Mr Sykes until January 1884. The new firm, of which Forrest and Sykes were the sole partners, was sequestrated in October 1884, and it is in consequence of their bankruptcy that the question has arisen. Before raising the present actions each of the pursuers claimed in the sequestration for the sums for which they now sue, setting forth in their affidavits that Messrs Forrest and Sykes are the sole partners of the firm of Girdwood & Forrest. In each of the actions the conclusions are directed against the firm of Girdwood & Forrest, and Thomas Jackson, the trustee on the sequestrated estates thereof, and against Girdwood, Forrest, and

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