Cumpston v. McNair, 1 Wend. 457

Cumpston v. McNair

1 Wend. 457 | N.Y. Sup. Ct. | 1828

By the Court,

Sutherland, J.

The plaintiffs were bound to endeavor to collect the note from Drake and Wheeler, before they could resort to the defendant. He guaranteed the collection of the note to Leitch, the intestate. The very terms imply that measures to collect it from the principals were first to be used, and the defendant’s contract or guaranty was, that those measures should be successful; if not, that he would pay the note and costs. It is precisely equivalent to a guaranty, that the note was collectable, by due course of law, for it can be collected, that is, payment of it enforced only by due course of law; and it has been decided, that upon such a guaranty, the plaintiff is bound to pros*461ecute all the parties to the note with due legal diligence, before he can resort to the person making the guaranty. (Moakley v. Riggs, 19 Johns. R. 69. Thomas v. Wood, 4 Cowen, 173.)

When the payment of a note is guaranteed by a third person, it is an absolute undertaking, that the note -shall be paid, when due, and if not paid, a suit may be immediately commenced upon the guaranty, and if the guaranty is by the indorser of the note, it dispenses with the necessity of a demand of the maker and notice to the endorser. (Bank of New-York v. Livingston, 2 Johns. Cas. 409. Allen v. Rightmere, 20 Johns. R. 365. 17 Johns. R. 326. 12 Mass. R. 14.)

In this case, however; a suit was commenced against the makers, but never brought to trial. And the next enquiry is, whether the plaintiffs have shown a sufficient excuse for not proceeding in the cause. The note was signed by Drake, in the name of Drake and Wheeler; and the declaration avers, by way of excuse for not prosecuting the suit against them to judgment, “ that no recovery could be had against them, for the reason, that there had been no copartnership existing between the said Abraham Drake and William Wheeler, whose copartnership name was signed to said note ; nor had any person whatever the right of using said signature of Drake and Wheeler, when the said note was made.” The attorney who commenced and prosecuted the suit, testified, that the reason why the cause was not brought to trial was, because no witness could be found to prove the partnership ; but no notice of the suit appears to have been given to the defendant, McNair, nor any application made to him to furnish evidence of the partnership. If there was then in fact a partnership, or if the note was given under circumstances which made it obligatory upon both Drake and Wheeler, the defendant should not suffer from the neglect of the plaintiffs to procure the legal evidence of it. It does not appear what measures, if any, were taken to procure testimony upon the point; but the neglect to apply to McNair for information, who was, in truth, the only party interested in the suit, and who must have known the circumstances under ' *462which the note was given, (as he was the payee) and the reflations existing between the makers, is conclusive upon this point.

It is proved that Wheeler was at that time, and for some years afterwards, abundantly able to have paid this note, and that now, both Drake and Wheeler are insolvent.

The testimony of Drake, I think, establishes a clear case of á limited partnership between him and Wheeler, in the particular transaction, in relation to which this note was given. He testified, that the Utica Insurance Company had obtained a judgment against himself and Wheeler, (jointly as I understand) as the endorsers of one Gould and Hess; that Gould and Hess, in order to secure them, turned out to them a number of notes, on which they collected a quantity of salt; that the witness took charge of the salt, and went to market with-it, by the request of Wheeler; that the salt was marked D. & W., the initials of Dyake and Wheeler; that they had money of the defendant, McNair, to pay the duties on the salt; that he also transported the salt from Salina to Erie, in Pennsylvania ; that the said note was signed by him, and given on settlement with said McNair, for the said transportation, and money advanced to pay the duties and other expenses incurred in getting the salt to market; and that the salt was turned to the joint betfefit of Drake and Wheeler, and paid to the Utica Insurance Company, on their judgment against Drake and Wheeler; that he told Wheeler, when he came back, that he had given a note for the amount due to McNair," and signed it Drake and Wheeler, to which Wheeler made no objections ; that it toas agreed between him, and Wheeler, that he should, turn the salt into money; that he did the business principally; and that it was done in their joint names. Wheeler was also examined as a witness, and he admitted, that when informed of the giving of the note by Drake, he made no objections to it and his testimony is not inconsistent with Drake’s in any material fact above stated, although he swears in general terms,' that they were not partners when the note was given, and that he never gave Drake liberty to usé his name in that manner.

*463Here were all the ingredients of a limited partnership. There was a joint purchase for a particular adventure, upon an agreement to share jointly in the ultimate profit and loss ; the goods were marked with the initials of both parties, actually sold, and the proceeds applied to- the payment of a joint debt. A partnership is nothing more than a community of interest between two or more persons, and a sharing of a profit and loss, either in relation to a general trade, or a specific adventure. (Watson on Part. 40.) To constitute a partnership in a particular purchase, as in a single concern, there must either be a joint undertaking to pay, or an agreement to share in the profit and loss. (Per Spencer, J. in Post v. Kimberly, 9 Johns. R. 496.) Partners in a specific purchase or adventure, have, in relation to that adventure, all the rights, and are subject to all the liabilities of general partners ; but the relationship ceases with the adventure, and is confined to it. (Watson, 40.) These principles, applied to the evidence in this case, appear to me decisive upon the question of partnership, and show that Drake was authorized to sign the notes in question with the names of Drake and Wheeler, it having been given for moneys advanced and services rendered in relation to the transaction in which they were partners. (Holmes v. The United In. Company, 2 Johns. Cas. 331. Livingston v. Roosevelt, 4 Johns. R. 265. 9 Johns. R. 479.)

The judge left it to the jury to say whether there was a partnership or not. He also charged them, if Wheeler assented to the use of his name after it was signed to the note, then they should find for the defendant.

There being no dispute as to the material facts in relation to the partnership, it was a question which the judge should have decided ; but as the jury found, in accordance with what we hold to be the law of the case, this is no ground for directing a new trial.

The subsequent assent of Wheeler to the use of his name, in this point of view-becomes immaterial.

Motion for new trial denied.