58 N.W. 339 | N.D. | 1894
This case must .be reversed upon- the sixth assignment of error. The other assignments need not be noticed, as the matters of which complaint is made may not occur upon another trial. • Only so much of the case will be stated as is necessary for an understanding of the point ruled.
Plaintiff is a corporation. The defendants, O. H.-Gilman and Gilman Lykken, were co-partners in the mercantile business under the firm name of O. H. Gilman & Co. It was a special partnership, O. 'H. Gilman being the general partner. This firm became indebted to plaintiff for goods purchased, and an action was begun on the indebtedness. Subsequently, plaintiff’s agent visited defendants, and a settlement was reached. At that time, defendants owed plaintiff $1,133.95. Plaintiff offered to take $1,000 cash. Defendant Gilman Lykken learned that the bank would pay $1,000 for the firm’s note for $1,133.95. Thereupon, the firm note for $1,133.95 was executed and delivered to plaintiff, and by plaintiff indorsed to the bank, and the $1,000 paid by the bank to the plaintiff. On the same day the plaintiff’s agent, who then knew of the special partnership, without the knowledge or consent of Gilman Lykken, induced O. H. Gilman to execute to plaintiff the firm note for $100, apparently to make good, to that extent, the discount that plaintiff had suffered. It is upon this latter note that this suit is brought. Lykken knew nothing of the execution of the note until service of the summons. These facts were brought out in the evidence, and, at the close of the testimony, plaintiff moved the court to direct a verdict for plaintiff for the full amount of the note. The motion was granted, and, pursuant to the instruction, the jury returned a general verdict in favor of plaintiff and against defendants for the amount of the note. Subsequently, plaintiff moved for judgment against both
Reversed.
