18 N.Y.S. 318 | N.Y. Sup. Ct. | 1892
This action is brought against defendants as co-partners on a note purporting to be made by the firm, the defendant Frommel only defending. The plaintiff alleges the copartnership of the defendants, and that they, on or about September 29, 1890, duly made, executed, and delivered to the plaintiff the note in suit. The defendant Frommel, in his answer, interposed a general denial. On the trial it was shown that the note, which was executed by the defendant McKinstry, was given for lumber sold September 29, 1890. The partnership was formed on October 1, 1890. The defendant then offered to show that said note was so given by McKinstry in the name of the firm for a past due indebtedness from McKinstry to plaintiff. This evidence was objected to on the ground that it was inadmissible under the general denial contained in the answer and excluded by the referee. If this proof had been received and made, it would clearly have constituted a defense to the action. The law applicable to such cases, as stated in Parsons on Contracts, is quoted with approval in Bank v. Underhill, 102 N. Y. 340, 7 N. E. Rep. 298, as follows: “Whenever a party receives from any partner in payment for a debt due from partner only, whether the debt be created at the time or before existing, or by way of settlement of or security for a debt or indebtedness, an obligation of the firm in any form, the presumption of the law is that the partner gives this and the creditor receives it in fraud of the partnership, and has consequently no demand upon them.” Hence, had the defendant made the proof offered, the presumption would have arisen that the note was given in fraud of the partnership, and unless the plaintiff could have answered that presumption he must have failed in the action. The question, then, arises whether the defendant was entitled to offer such evidence under the general denial contained in his answer. The allegation in the complaint is that on September 29, 1890, defendants, as copartners, made and delivered to plaintiff their note, etc. Defendant denies this allegation in the complaint. The plaintiff, then, was bound to show the execution and delivery of the note by the copartners. He shows this presumptively by showing the execution of the firm note by McKinstry, one of the partners. The note, being made by the partner in the firm name, is presumed, in the first instance, to have been made on account of the firm business. But this is only a presumption. The defendant may controvert such a presumption, and I think can do so under a general denial. The question before the referee was, was the note in suit executed by the firm? To award judgment for the plaintiff the referee must find that it was. The plaintiff must show by competent testimony that the paper was executed by the partnership. How does he show it? By showing the execution by one copartner in the name of the firm, which raises the presumption that it was a firm paper. But the reason that
I am unable to see how an estoppel can exist in this case. The defendant, on the trial, made a mistake as to the legal effect of his answer. But it is held that a party is never estopped by his admission or assertion of a legal conclusion. Brewster v. Striker, 2 N. Y. 19. But again, an estoppel in pais is where an act or omission of a party has influenced another to a line of conduct or to act in a way prejudicial to his interest, if the party doing such act or making such admission is not prevented from retracting. The cases cited by plaintiff will illustrate this proposition. In this case the defendant proposed to amend his answer, and obtained the order of the special term allowing him to do so on terms. He did not avail himself of the order, and afterwards appeared before the referee, and on the trial claimed under the general denial to show the facts excluded as above by the referee. The plaintiff has not acted or been influenced or injured by the proposal of defendant to amend his answer. It does not appear that the plaintiff, in consequence of defendant’s procuring the adjournment and obtaining the order to amend, has done any act that he would not have done had such an adjournment not been had or said order not been obtained. Hence it is not a case of an estoppel. These facts render it unnecessary to consider the question discussed by counsel whether, under the general denial, the defendant could properly show