Doniphan v. Gill, 40 Ky. 199

Doniphan v. Gill

40 Ky. 199 | Ky. Ct. App. | 1841

Chief Justice

Robertson delivered the Opinion of the Court.

George Doniphan and Josiah G. Smoot, merchants, trading in the style of 11 Doniphan ty Smoot,” having, through the partner Smoot, .borrowed from Ann Gill §700, the said Smoot thereupon delivered to her a sealed obligation for payment, signed “Doniphan fy Smoot.”

There being no proof of authority to bind Doniphan by a seal, he denying any such authority, pleaded non est factum, to an action afterwards brought against himself and Smoot, on the said obligation; and thereupon that suit was discontinued, and this action of assumpsit brought Rgainst him and Smoot, for the said borrowed *200money. The Circuit Judge, to whom both the law and the facts were submitted, rendered judgment against the defendants for $700 and interest.

A partner who has pleaded non est factum to a note under seal, executed by a partner, without authority, is thereby estopped when sued in assumpsit with his partner, to rely on the note as merging the original assumpsit. The receipt of the note of one of several jointly liable, may be, ;prima facie, an extinguishment of a pre-existing joint liability on a contract of inlerior dignity. The execution of abondunder seal by one of several partners, in the name of the firm, (without authority) creates no presumption that the note or bond, ftho’ binding on the partner signing,) was received in satisfaction and extinguishment of thejoint liability of all the members of the firm — nor will the liability of one or more on the bond, destroy the right of action on the original joint liability.

*200That judgment should, in our opinion, be affirmed.

Doniphan is estopped, by his plea of non est factum, from pretending, in. this case, that ho is bound by the sealed note, and there being neither proof n®r presumption of bis being legally liable thereon, neither he nor Smoot could now maintain the assumption that a joint action might be sustained against them on that obligation.

The remedy, for enforcing payment, must be joint, unless Smoot alone be liable, and bis liability cannot be several and sole, unless the bond, as obligatory on himself alone, should be deemed an extinguishment of tho antecedent joint assumpsit, implied by the borrowing of the money in the name and for the use of the firm. Then either Doniphan and Smoot must be jointly liable, as sued, in assumpsit, or Smoot alone is legally responsible and must be sueable on the bond only.

It is well settled, by adjudged cases, that receiving the individual obligation of one partner-may be, prima facie, a constructive extinguishment of a pre-existent partnership liability, on a contract of inferior dignity, in consideration of which it was given, because, in the absence of any other fact, the presumption may be, that such a bond was accepted as a satisfaction and not as a collateral security merely,

But this reasonable doctrine does not, in our opinion, apply to the facts of this case. Here the only rational presumption is, that Mrs. Gill accepted the bond, not as the single obligation of Smoot, but, according to its apparent import, as the joint undertaking of Doniphan <$• Smoot, and upon the credit of Doniphan as well as that of Smoot. Considering it then, according to its technical effect, as the obligation of Smoot alone, it never accepted as a satisfaction of the implied liability of ‘ ‘Doniphan <$• Smootand, unless it had been so accepted, it could not, per se, extinguish the joint assumpsit, resulting by implication of law, from the joint borrowing.

Nor, if the bond, as obligatory on Smoot alone, might be enforced against him as collateral security, could that *201circumstance affect the joint liability in assumpsit. The fact that Mrs. Gill might have either sued Smoot alone on the bond, or Doniphan & Smoot jointly, in assumpsit, can have no other legal effect than that of making the joint judgment against them in this case, operate as a bar to any future action against Smoot alone, on the bond or otherwise.

A joint judgment in assumpit against all those originallybound, will bar any suit on the note of those bound in thebondforsame demand. Horeland. W. C. Marshall for appellants; Me Clung and Taylor for appellee.

The judgement of the Circuit Court is, therefore, affirmed.