1 Wend. 529 | N.Y. Sup. Ct. | 1828
By the Court,
Ifosmer, the agent of the plaintiffs, took the note in question for a debt due from Allen, the maker, to them, He refused to take Allen’s note without security. The security given was" the endorsement of Burr and Baldwin, the defendants, and of Smith and Jenkins, the second endorsers. The plaintiffs, therefore, knew when they took the note, that the endorsement of the defendant was made by one of the partners, in the name of the firm, as security for Allen, and not for a debt due from the firm. The partner who did not sign the note, is not bound by it under such circumstances, unless he was previously consulted, and assented to the transaction; and the burthen of proving that the partner who did not sign the note consented to be bound, is thrown on the creditor. (Dob v. Halsey, 16 Johns. R. 38, and Foot v. Sabin, 19 Johns. R. 157.) In England, the assent of all the partners is presumed, and the burthen of avoiding the security is thrown on the firm, and they are required to prove that the note was signed by one of the partners on his individual account, without the knoxvledge and against the consent of the others, and that the creditor knew that fact when he took the paper of the firm.
Here the onus probandi is thrown on the creditor. The law upon this subject is very fully considered and clearly established in the cases referred to, and also in Livingston v. Hastie & Patrick, (2 Caines, 246,) Lansing v. Gaine & Ten Eyck, (2 Johns. Rep. 300,) and Livingston v. Roosevelt, (4 Johns. R. 251.) The only distinction between this case and that of Foot v. Sabin, (19 Johns. R.) is this: in that case the note was signed by one of the partners in the name of the firm as sureties; here it was endorsed; and it was urged