14 Wend. 133 | N.Y. Sup. Ct. | 1835
By the Court,
It is clear that the debt, to secure the payment of which the note in question was given, was the private debt of Williams, and the plaintiff who had been an endorser previously at the bank for him, must be deemed chargeable with notice of the fact. He knew the paper of the firm was given by Williams for his own debt, when he endorsed this note, and (being obliged to know the law) that it was used for purposes not belonging to the partnership business. He ought not therefore to have confided in it, notwithstanding the strong representations of the agent of Williams, because they amounted to nothing more than the face of the note imported, if genuine, to wit, that all the members of the firm had consented to be responsible for the private debt of one of them. The difficulty is, the member not in fact consenting is unaffected by either the inference thus deducible from the face of the note,orthe representations of any other member, unless the plaintiff is a bona fide holder.
The English cases upon this subject are not always consistent with themselves; and even the same court, while they profess to adhere to their general position, namely, that the partner denying the authority of his associate must prove affirmatively that the holder knew the paper was given in a transaction unconnected with the partnership, and also that he did not assent, sometimes substantially disregard the latter qualification of the rule in the application of it to the facts. The case of Hope v. Cust, before Lord Mansfield in 1774, cited by Lawrence, J. in 1 East, 52, is an instance. There one Fordyce, who traded largely in his private capacity, as well as in the business of a banker with others, had considerable dealings in his private capacity with Hope & Co. in Holland, and gave to them a general guaranty in the partnership name, for money due in his separate capacity. The plaintiffs failed
The case of Shirreff and another v. Wilks and others, 1 East, 48, is another instance. There the plaintiff, Oct. 1795, sold a quantity of porter to B. & W., partners, which was shipped by them to the West Indies. In April, 1796, R. came into the firm and continued until November following, when it was dissolved. The balance due for the porter, as settled by W., was £78, for which the plaintiffs drew upon the defendants the bill in question, which was accepted by B. in the name of the then firm. The court decided R. was not bound, and Lord Kenyon says, R. had no concern with the matter, and was no debtor of the plaintiffs; that no assent of his was found, and nothing to show that he had any knowledge of the transaction ; that the transaction was fraudulent upon it face.
In Ridley v. Taylor, 13 East, 175, the rule was applied by Lord Ellenborough with more strictness. There he required
In this court, the cases are believed to be uniform from that of Livingston v. Hastie, 2 Cai. 246, down to the present time,
To return from this digression to the case before us, we have already said the plaintiff could not recover, on the ground that he was a bona fide endorser for the firm, and have stated the grounds upon which he was not to be viewed in that light. It is however contended by him that there is evidence of assent by Johnson, either express or implied. We have seen nothing like express assent, but we cannot say that the jury erred in implying assent from the facts and circum
New trial denied,.