143 Ill. 83 | Ill. | 1892
delivered the opinion of the Court:
The Monmouth Printing Company was a limited partnership, formed for the purpose of publishing at Monmouth two newspapers, one a weekly, called the “Monmouth Atlas,” and the other a daily, called the “Evening Gazette,” and for the further purpose of there doing a general printing business. It was engaged in the business for which it was organized, when, in the spring of 1888, fifty citizens of Galesburg submitted, in'writing, a proposition or offer, the object of which was to secure the removal to and publication in Galesburg of the Evening Gazette as a daily newspaper, independent in politics. The partnership, at the time the offer was made, consisted of four partners,—George G. McCosh, Samuel S. Clark and Cyrus J. Wood general partners, and John S. Clark, a special partner; and the proposition or offer that was witnessed by the writing submitted was made to C. J. Wood and G. G. McCosh and J. S. and S. S. Clark. Three of the persons to whom the proposition was made and who were named in it, that is to say, McCosh, Wood and Samuel S. Clark, accepted the offer contained in the proposition, and signed the written agreement which was executed, as an answer to and acceptance of the proposition and offer submitted, and each of them signed it with his individual name. John S. Clark did not sign it.
The acceptance expressly shows, upon its face, that it is an agreement made by three, only, and to be performed and carried into execution by three, only, of the firm or proprietors doing business at Monmouth. It does not purport to be an undertaking by or on behalf of the firm. Its language is: “The undersigned, S. S. Clark, G. G. McCosh and C. J. Wood, owners and proprietors, in part, of the Evening Gazette, a daily newspaper published at present at Monmouth, Ill., * * * on our part hereby agree * * * that we will, as soon as practicable, abandon the printing of the Evening Gazette at Monmouth .and remove the same to Galesburg, and locate and publish it in that city, * * * and that the Evening Gazette office, when so located in .Galesburg, shall be prepared to issue a daily afternoon paper,” etc. At the foot of the written agreement of McCosh, Wood and S. S. Clark a memorandum was written by John S. Clark, in which he stated, “I consent to the making of the above agreement by my partners, without myself assuming any of the obligations therein contained.” This is a recognition of the agreement, not as an agreement of the firm, but of the three persons who were his partners' in the business done at Monmouth, and his expression of his consent that they might make such agreement, and at the same time and in the same connection a disclaimer of any assumption on his part of any obligation growing out of said agreement. The material obligation contained in and imposed by the agreement is the publication and issue in the city of Galesburg of a daily afternoon paper, and it is in respect to that obligation that he disclaims any responsibility.
The fact that John S. Clark and three other persons were partners in the enterprise of publishing two newspapers at Monmouth, and of carrying on at that place a general printing business, did not preclude said three other persons from undertaking an independent enterprise and scheme for the publication of a newspaper in another city and county; and if John S. Clark did not .join in such ñeiy enterprise, but, on the contrary, refused to do so, and expressly disclaimed, in advance, any liability growing out of the same, then, upon the plainest principles of justice, he should not be held liable for indebtedness incurred in the prosecution of such new enterprise, unless the circumstances are such as that, by some fault or negligence of his, money or property was parted with or services rendered on the faith of his credit.
In the case at bar, the written instruments that we have already considered were placed in the hands of the bank and its officers at and before the time' that an account was opened with the Evening Gazette or any money paid out on its checks. The bank had full and ample notice from said agreements and from the memorandum signed by John S. Clark, that said Clark was not one of the parties to the enterprise of printing and publishing the Evening Gazette at Galesburg,—that the firm of the Monmouth Printing Company was not publishing said paper, but that McCosh, Wood and Samuel S. Clark, three of the four members of that firm, were the sole and only proprietors of the Evening Gazette published at Galesburg. That the account was opened and kept by the bank in the name oV'The Evening Gazette,” that the moneys were all checked out with checks signed by that name, and that three of the notes sued on were, when first executed and delivered, signed with that name and the names of McCosh and Wood, are admitted facts of the ease, and seem to indieate clearly that the money here in question was not advanced on the credit of the partnership doing business by the firm name of the Monmouth Printing Company.
Some twenty-eight written propositions were submitted to the court at the trial, to be held as law in the decision of the case. The rulings of the court thereon indieate that the trial court took substantially the same view of the law of the case as that indicated herein. A number of the propositions that were tendered by plaintiff in error and marked “refused,” contained correct statements of principles of the law, and were doubtless refused on the ground that they were not applicable to the circumstances of the case on trial or not based on competent testimony, and. therefore not to be held as'law governing the decision of the ease. We are unable to see that the action of the court in the premises worked any substantial detriment to the rights of plaintiff in error.
We find no error in the record for which the judgment should be reversed, and it is therefore affirmed.
Judgment affirmed.
