This was an action of assiompsit brought to recover upon a promissory note for $1000 given by the Munising Iron Company, and made payable to the order of Prop. Ira Chaffee, and endorsed Prop. Ira Chaffee, E. B. Spear, manager, F. B. Spear and W. L. Wetmore. Spear, Wetmore and James Freeman were declared against “ as co-partners doing business under the firm name of Propeller Ira Chaffee.”
On the trial evidence was introduced tending to show that defendants Spear, Wetmore and Freeman were owners of the propeller, and were engaged and interested in running said steamer, and that the profits realized by them and losses incurred in running the boat were to be shared by them in proportion to their respective interests in said boat. There was some other evidence introduced tending to show that these parties were partners in the business of running the vessel, and this was denied by some of the defendants. There was also testimony tending to show that Spear was, and had acted as, business manager and general manager of the boat during the years 1875, ’6 and 57, and that during the years 1875 and ’6 the boat was running between Marquette and Grand Island carrying freight and passengers.
The note in suit was given by the Munising Iron Company to take up a previous like note, originally given to the propeller in payment for freight and supplies, and which had been negotiated to carry on the business of running the boat.
It seems to me that this case was not submitted to the jury upon the proper theory under the pleadings and evidence in the case, nor did counsel for the plaintiffs make any request that it should be so submitted.
The defendant Freeman was sued as a co-partner, a member of a.firm doing business under the firm name of Propeller Ira Chaffee, upon an endorsement made by a member of that firm, in the firm name, upon paper received by the firm in the usual and regular course of the co-partnership business, and for the purpose of carrying on such business. What the powers and duties of a managing owner of a vessel, or the rights and liabilities of the owners thereof, as such, might be, were wholly immaterial, not being in issue.
The case should have been submitted to the jury with proper instructions, dependent upon their finding a co-partnership in fact, as a foundation for any right of the plaintiff
A question was raised on the trial regarding the sufficiency of the notice of protest. None of the defendants denied by affidavit annexed to their plea the fact of having received such a notice. 1 Comp. L. § 603; Fish v. First Nat. Bank
The judgment will be reversed with costs and a new trial ordered.