Dillon v. McRae

| Ga. | Dec 15, 1869

Brown, C. J.

There were several rulings of the Judge of the City Court complained of in this case in the Superior Court. But Judge Schley confined his judgment to the third and fourth grounds, which were in these words: Third, because the. Judge erred in charging that the law, as laid down in the case of Boardman vs. Grafton, page 330, volume 15, Massachusetts Reports, was the law of this case. Fourth, because the Judge erred in charging the jury that Dillon could recover of McRae, on an usurious contract made between Dillon and Wilcox without McRae’s knowledge or ratification.

We do not think the Judge of the City Court erred in either of these charges. • It appears from, the record that the case in 15 Massachusetts'Reports had just been read in the presence and hearing of the jury, by counsel, and the Judge referred them to the decision “which had just been read,” and said : “ I charge that decision to be the law, and that when the partner, Wilcox, upon the firm name of Wilcox & McRae, received the money from David R. Dillon, the money so received was instantly, in the eye of the law, received to the use of the plaintiff, and both the copartners were prima facie liable therefor.”

The principle announced in the decision referred to, and in the case of Manufacturers’ and Mechanics’ Bank vs Gore and Grafton, in the same volume, page 75, is, that when one of two copartners obtained money upon a note signed by him, with the name of the firm, and purporting to be endorsed by a third person, payable at a future day, and before the maturity of the note it was discovered that the name of the supposed endorser had been forged, it was held that the lender of the money was entitled to his action immediately, as for money received to his use, and that the action well lay against both the partners, although the other knew nothing of the forgery, the money having gone to the use of the partnership.

It will be observed by reference to the charge of the Court as given, that he does not say that decision is the law of this case, as set forth in the third ground of exception; but “ I charge that decision to be the law.” In other words, he charged that the principle announced in that decision was a sound rule of law when applied to the facts of this 'case. This is the substance of the charge, as it was doubtless understood by the jury, and in this we agree with the Judge of the City Court. See 12 Georgia, 271, 329.

It is true, the evidence is not by any means conclusive that the money obtained by Wilcox from Dillon was applied to the use of the partnership; but there was evidence tending to prove that fact. Nathans, the book-keeper, swears that the creditors of the firm, who had been frequently calling to demand their pay, stopped coming about the time this money was received by Wilcox from Dillon. It was also in evidence that McRae, the other partner, was not in town during the period of this transaction. If the creditors stopped coming because they had been paid, as is most probable, it is reasonable to infer that the payment was made by Wilcox. Nathans also shows by the cash-books of the firm that $280 00 were paid out above the cash received, from 12th to 18th July, inclusive. And the evidence of Cunningham, the bank officer, shows that, during this same period, there were three deposits made in bank in the name of the firm, amounting in the aggregate to $530 00 in currency and $100 00 in specie.

Upon this state of facts, in connection with the other "evidence in the case, we think the charge as given was sound law, and applicable to the case then on trial. It will be observed, the Judge did not refer to the decision in the book just read as the law, and stop there, but he went on to make the application, by saying : “And when the partner, Wilcox, upon the firm name of Wilcox & McRae, received the money from Dillon, the money so received, was, instantly, in the eye of the law, received to the use of the plaintiff,” etc.

2. But could McRae avoid the payment of this note on the ground that his partner contracted to pay usurious interest when he borrowed the money in the firm name ? We think not. We admit that one partner cannot bind his co-partner by any illegal contract, and it is very clear, therefore, that the other partner was not bound to pay the usury which Wilcox promised to pay for the use of the money. To the extent of the usury the contract was illegal and void. But it was a legal contract by oui; law to pay the principal and legal interest, and McRae was bound by it to that extent. There was no difficulty in this case in separating ^he illegal from the legal part of the contract. The Court and jury could readr ily ascertain what part of it was legal, and it was their duty to enforce it accordingly.

Upon a careful examination, of the whole charge as given by Judge Chisholm to the jury, in the City Court, we are of opinion that the case was fairly submitted to their consideration. He expressly charged, that, “if from the testimony you find that this money, borrowed from plaintiff by Wilcox, was in fact applied to the copartnership uses of Wilcox & McRae, then the defendant, McRae, is liable upon the money counts in the declaration, less the usurious interest. But if you find that the money borrowed was not applied to the uses of the copartnership, and further find that David R. Dillon, the plaintiff, knew, or had reasonable grounds to suspect, that the money borrowed was intended to be applied to other purposes than the business of Wilcox & McRae, then David R. Dillon, the plaintiff, can not recover from defendant, McRae.”' We are satisfied the charge was substantially correct, and that the evidence was sufficient to sustain the verdict.

We therefore reverse the judgment of the Superior Court, and direct that the certiorari be dismissed.