¶1The opinion of the court was delivered by
¶2Plaintiffs brought this action to recover the sum of two thousand two hundred and forty-six dollars and seventy-one cents and interest, they claim as due by the defendants, who are, they allege commercial partners.
¶3They aver that it was for goods and merchandise sold by them to the defendants.
¶4They declared upon an account and alleged in their petition, that in recognition of their indebtedness the defendants had furnished them with a number of notes, maturing at intervals of thirty days, which remain unpaid.
¶5One of the defendants, George B. Ittman, had been interdicted at the date suit was brought. His curator was cited as party defendant.
¶6After, suit had been instituted, this defendant died. His daughter, as testamentary executrix of his estate, was made defendant.
¶7Each defendant pleaded a general denial. They separated in their defence.
¶8No evidence was offered by the executrix.
¶9The other defendant defended on the ground that he was not a partner, and offered evidence to prove that he was not responsible for the debts, as he was not, he contended, a member of the firm sued.■
¶10The 'testimony discloses that in January, 1881, the two brothers, George B. and Jacob, formed a partnership to end on October 31, 1882. It was not expressly renewed at the end of the term stipulated.
¶11*892The style of the firm under the contract of partnership was George B. Ittman, and the plaintiffs contend that the partnership continued by tacit reconduction, and that the goods, the price of which they sue for, were sold to a commercial firm of which George B. Ittman and Jacob Ittman were partners; that they were used by the firm in operating a barroom.
¶12In the formal articles of partnership, it is stated that Jacob was the owner of one-half of the interest in the business, stock, fixtures, and appurtenances.
¶13He put in the concern an amount stated, and thereby acquired a half interest.
¶14The records do uot show that there ever was a final settlement made between the partners, and that the firm was dissolved at the time for its dissolution stipulated in the written agreement of partnership.
¶15The business was conducted during all the years succeeding the stipulated term of the partnership as it had been conducted originally under the formal contract.
¶16The prominent facts showing the continuance of the partnership are, that the property in which the partnership business was conducted was leased by the partners jointly.
¶17That in a matter of bank accommodation Jacob Ittman represented himself as one of the partners, and as a partner obtained an extension of time for payment; that the debits and credits of the partnership accounts were kept, as they had been kept under the formal articles of partnership, and that Jacob Ittman received his portion as a partner; that he on different occasions acknowledged his interest as a partner.
¶18After the sickness of his brother in 1892, he had entire charge of the business, to the date of his brother’s interdiction in June, 1893.
¶19All the testimony, except his own, shows that his management was that of a partner.
¶20His statement regarding the character of his management is not only contradicted by witnesses, but is inconsistent with the history of the business, as made manifest by the books of the firm.
¶21The evidence of plaintiffs consists of their accounts sued on, and the notes signed by the defendant firm.
¶22They also offered the interdiction proceedings in the snit in which one of the defendants was interdicted.
¶23*893The note of evidence was closed, and after argument of counsel for both plaintiffs and defendants, the case was taken under advisement by the court.
¶24While it was under advisement, the executrix filed a supplemental and amended answer and peremptory exception, in which she alleged, in substance, that plaintiffs could not recover on their accounts, for they held notes which had been introduced in evidence, and that these notes had been signed by the late George B. Ittman, after he had become notoriously insane; also that he was thus affected at the times (previous to the execution of the notes operating an acknowledgment) the goods, described in the open accounts, were sold and delivered.
¶25On plaintiff’s motion, averring that it was not a peremptory exception, but an amended and supplemental answer, it was treated as of no effect and excluded from the' record. The District Court pronounced judgment for the plaintiffs and against both defendants in solido.
¶26From the judgment both defendants have appealed.
¶27BILL OP EXCEPTION.
¶28The defendant Jacob Ittman, through his counsel, argues that the notes were signed by George B. Ittmann, and that there is no allegation that they were taken in error, that the suit was brought against the defendants as commercial partners.
¶29He invites attention to the fact that, at the opening of the case he interposed the objection that, upon the face of the papers, it was an attempt to hold the defendant Jacob Ittman for another person’s debt, and that the open account had been novated. That this objection was overruled and a bill reserved.
¶30Had the evidence supported the contention that Jacob Ittman was not a partner and that he was only an employé, the points urged would be unanswerable. The testimony leaves that theory of the defence unsustained by the facts. There was no error committed in admitting the testimony offered to prove that a partnership existed, and in not sustaining the plea of novation urged as an objection to the admissibility of the testimony.
¶31THE EXISTENCE OP THE PARTNERSHIP.
¶32At the risk of some repetition, we resume a statement of the facts regarding the partnership, as follows:
¶33*894There was a partnership originally in the name of George B. Ittman.
¶34This is undisputed.
¶35The property belonged to the partners in equal shares.
¶36There was no settlement of the partnership. .
¶37The partner Jacob Ittman obtained extension of time for payment of partnership debts.
¶38Those near him, occupying desks in one of the apartments occupied in conducting defendants’ business, looked upon him as a partner, because of his active management and control of the business.
¶39He has actively and interestedly attended to the business of the partnership. He has drawn amounts from the partnership funds, not consistent with his statement that he was an employé.
¶40His signature in one of the books.in evidence, together with that of his brother and copartner, at the end of the statements of amount received, indicate, not a receipt for wages, but an agreement between partners as to amounts received by one of them from the partnership funds.
¶41MAY HAVE BEEN UNKNOWN AS A PARTNER AND YET RESPONSIBLE.
¶42With reference to the knowledge of the creditors.
¶43The responsibility of a partner may exist, though it was not known by the creditor that he was a member of the partnership.
¶44Whenever the parties intend a partnership between themselves, they are, or at least may be held to be, partners as to third persons. Story on Partnership, Sec. 49.
¶45The existence of a dormant partner may be unknown to the creditor, and yet he may be held liable to the extent of his responsibility as a partner. Lindley on Partnership, Vol. 1, p. 339.
¶46The secret partner can escape liability only by the failure of the creditors to discover the relation he holds to the business. Chaffraix & Agar vs. Lafitte & Co., 30 An. 631.
¶47Commercial partners are bound in solido. They were commercial partners and bound for the payment of the debt.
¶48AN ANSWER INVOLVING ISSUE OR EAOTS RILED TOO LATE TO BE CONSIDERED.
¶49The other defendant, the executrix, could not be heard to raise an issue of fact after the case had been argued and submitted for decision.
¶50*895The question of insanity, vel non, of the late George B. Ittman at the time the debt" was contracted, was purely one of fact, and if the executrix desired to avail herself of that defence, it should have been seasonably presented.
¶51But she contends that the record in the interdiction proceeding, introduced in evidence by plaintiffs without limitation, established more than the mere fact of interdiction and the appointment of a curator.
¶52This manifestly was the purpose of plaintiffs in introducing this record.
¶53The omitted limitation of the effect it should have is seized upon by the defendant as cause sufficient to enable her, some time after argument, to plead the absolute incapacity of the defendant at the dates the purchases were made.
¶54We are compelled to decline all consideration of an exception tendered, going to the merits of the cause, on an issue of fact. It was really an answer. C. P. 419, 420; Boagni vs. Anderson, 32 An. 920; Cohn & Bruen vs. Levy, 14 An. 355; Guilbeau vs. Thibodeau, 30 An. 1099.
¶55THE PLEA IS CONSIDERED UNDER THE GENERAL ISSUE.
¶56This conclusion, however, does not exclude all consideration of the defence presented.
¶57Had the plaintiffs, while proving their claim against this defendant, proved that he was notoriously insane, the executrix would have a right, under her plea, originally interposed, of general denial, to a judgment of non-suit.
¶58THE EVIDENCE DOES NOT PROVE INSANITY AT THE TIME.
¶59There is no proof of record that he was notoriously insane at the dates that the goods were sold to the defendant firm.
¶60He became ill in October, 1892, and from that time his family seriously considered his mental condition.
¶61It was only a short time prior to his interdiction that his mental condition became generally known.
¶62THERE WAS NO NOTORIOUS CAUSE FOR INTERDICTION, NOR WAS IT PROVED THAT PLAINTIFFS KNEW OF ANY ABERRATION OF MIND.
¶63It is announced in French jurisprudence, that acts anterior to the interdiction may be annulled, if there was notorious cause for in*896terdiction at their date. Cass., 11th of March, 1862, S. 63, T. 136, pp. 63, 634.
¶64Proof of a notorious cause for interdiction must be made, in order to defeat payment of goods purchased at their value in due course of trade. Laurent, Yol. 5, p. 376."
¶65In the two cases cited by counsel for the defendant (Fecel vs. Guinault, 32 An. 91; Lagay vs. Marston, 32 An. 170) the insanity was evident and the causes for interdiction well known to those who were parties to the contract annulled.
¶66The records disclose an entirely different state of facts in the case at bar.
¶67The mental condition of the sadly afflicted man was, so far as appears of record, a cause of concern and sorrow to the family, becomingly undivulged, until secrecy was no longer possible.
¶68PRICE OF GOODS NOT ALLOWED, PURCHASED FOR BUSINESS, AFTER CREDITOR WAS AWARE OF INSANITY, ONCE CAUSE FOR INTERDICTION HAD BECOME WELL KNOWN.
¶69The defendant, in argument, urges that plaintiffs sued on the notes they hold and not on their account. The fact is, that they declared on their account; that without defence or objection on that score, they proved the correctness of the account, and used the notes in corroboration of its correctness.
¶70Had they brought action on the notes they would not have recovered, for the drawer was notoriously insane on the first day of June, 1893, the date they were made.
¶71The insanity of George B. Ittman was notorious on the first day of June, 1893, and the fact known to the plaintiffs on that day.
¶72The price of the goods sold to him and charged to his account on that, and days subsequent, can not, under the law, be recovered, and to that extent the judgment must be canceled, in so far as he is concerned.
¶73It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by deducting the sum of ninety-eight dollars and forty-six cents from the amount of twenty-two hundred and forty-six dollars and seventy-one cents the executrix was condemned to pay, and that in all other respects it be affirmed, with costs of appeal to be paid by the plaintiffs and appellees, and those of the lower court as directed in the decree.