Gowan v. Jackson

| N.Y. Sup. Ct. | Aug 15, 1822

Spencer, Ch. J.

delivered the opinion of the Court: rp|je first p0int arising in this cause, as to the delay in presenting the bill for acceptance, was fully discussed and considered in the case of Robinson v. Ames.^* This is also a foreign bill, and was payable ninety days after sight, ¿ated Ju¡y is, 1817, and presented for acceptance the 16th January, 1818; and it had been circulated and passed through several hands. For the reasons given in the case of Robinson v. Ames, we are of opinion, that there was no laches in presenting the bill.

The next point made by the defendant’s counsel is, that the evidence to show that the defendant was a partner of the house of Jackson and Brothers, the drawees, did not make out the fact, either that the defendant was a partner, or that he was a partner when the bill was drawn.

The only witness, to prove the partnership, was P. S', Mills ; and he never heard or knew that there were such persons as the defendant and Jackson and Brothers, until February or May, 1818. Subsequent to these periods, Mills had done a good deal of business for the defendant, and had sold goods to a large amount by his orders., He had always understood there were two brothers connected in the business, the defendant and Daniel Jackson, and that the firm in London, was Jackson and Brothers, and the firm here was either Joseph Jackson, or Joseph Jackson Co.; and which, the witness did not recollect. And the witness had understood, from common report, that the defendant was a partner of the firm of Jackson and Brothers, in London. This is the substance of the evidence. When it is considered, that the bill was drawn in Antigua, and that there is no evidence of the defendant having done business in this country prior to the time spoken of by Mills, I think the evidence sufficient, prima facie ; and that it was thrown on the defendant to show the commencement of the partnership, if it began at a time subsequent to drawing the bill. The interval between drawing the bill, and the period spoken of by the witness, when by common reputation they were partners, was so short, as to render it improbable that the partnership commenced posterior to drawing the bill.

Considering it, then, as established,'that the partnership existed when the bill was drawn, and presented, the question arises, whether notice of non-acceptance was required to be given to the defendant. It was proved, that the bill was presented for payment on the 16th of January, 1818, and was then protested for non-acceptance; and it was presented on the 16th of April, 1818, for payment, and protested. In the absence of all other proof, the bill must be considered as drawn by one partner of the firm, on the firm itself, in relation to the partnership business: and if so, then a knowledge by one of the firm of the dishonour of the bill, is, in point of law, knowledge by the whole firm. Daniel Jackson, the partner in London, had notice’ that the bill was refused acceptance and payment, for he was the person who thus refused. In Porthouse v. Parker and others, (1 Camp. N. P. 82.) Lord Ellenborough held, that where a bill had been accepted by one of the defendants, this was sufficient evidence of its having’been regularly drawn ; and that, the acceptor being likewise a drawer, there would be no occasion for the plaintiff to prove, that the defendants had received express notice of the dishonour of the bill, as this must necessarily have been known to one of them, and the knowledge of one was the knowledge of all. This is a very just and reasonable principle, for although Joseph Jackson is alone sued on the bill, yet, as has been already observed, it must be deemed a partnership transaction; and a knowledge by one of the firm of the dishonour of the bill, was all that ought to be required.

Judgment for the plaintiffs.

* Ante, p. 146.