12 Pa. Super. 592 | Pa. Super. Ct. | 1900
Opinion by
This was a suit brought by the holder of a negotiable promissory note purporting to have been made by H. L. Mellinger and Company to the order of Joseph Herzog and indorsed by him. The plaintiff offered the note in evidence and rested. The defendant, Mary A. Miley, then made offers to prove that she
“ Q. Did you buy this note of Joseph Herzog? A. I did. Q. At the time you bought it from him did you make any inquiry as .to who he got the note from ? ”
Objected to by plaintiff.
“ A. I took the firm name. Q. Did you ask him any questions in regard to the note? You are a shrewd business man, Mr. Loeb. A. I asked him who the partner of Mr. Mellinger was and he told me Mrs. Miley. Q. Did you ask him how he came to get the note? A. No. Q. Did you ask him no questions? A. No. Except he told me he had a horse transaction.”
Mr. Brown: “Q. Got it for a horse he sold to them? A. Yes, sir. Q. Is he here? A. Not to my knowledge. Q. You took it then and bought it? A. Yes, sir. Q. Never inquired of Mrs. Miley about it? A. No, sir. ”
Objected to by plaintiff.
Mr. Brown: “ Q. Tins was before the -note was due ? A. Yes, sii\ Q. And that is all you know about it ? A. That is all I know. Q. He said Mrs. Miley was a partner? A. Of Mr. Mellinger. Q. And that it was a horse? A. Yes, sir, that he sold to Mr. Mellinger himself.”
There being no further testimony, the court gave the jury binding instructions to find for the plaintiff.
It is contended that the defendant’s offers were properly rejected, because they were not coupled with an offer to prove that the plaintiff took the note with notice of the fact that it was an accommodation note and was given without the knowledge or consent of Mary A. Miley. This was not a sufficient reason for rejection of the evidence, even if we accede to the proposition that an accommodation note signed with the firm name by the business partner of a married woman without her
It is clear that a married woman can engage in a trade or business on her own account since the act of June 8, 1893. That act gives her ample power to do so. If it appears wise to her to become a member of a firm instead of engaging in trade on her own individual account we can see nothing in the act to forbid it. But when she becomes a member of a firm she is entitled to the same rights and exposed to the same liabilities to persons dealing with the firm as are the other members. Among those rights, in the absence of stipulations to the contrary in the partnership articles, is that of incurring a debt on behalf of the firm in the transaction of its business, and of giving the firm’s note as an evidence of its indebtedness. Of course one member cannot give the firm’s note for his individual indebtedness. As such an act would be outside of the agency which each member has the right to exercise on behalf
Does a different rule apply where a married woman is a member of the firm, and the action is brought against the firm? So far at least as partnership property is concerned we are not prepared-to say that the same rule does not apply. But granting that it applies without qualifications, upon whom does the burden of proof rest ?
Clearly upon proof of the facts alleged in the defendant’s offers, a case of fraud in the issuing of the note would have been made out which would have put the plaintiff to proof that he obtained the note -before maturity in good faith and for value: Knight v. Pugh, 4 W. & S. 445; Kuhns v. Gettysburg National Bank, 68 Pa. 445; Lerch Hardware Co. v. The Bank, 109 Pa. 240 : Investment Co. v. Russell, 148 Pa. 496; Porter v. Gunnison, 2 Gr. 297. If the plaintiff shows these facts the defense may he demolished, but that is no reason why he should not be required to show them, as the above cited cases and many others that might be cited abundantly show. It follows, that, whether or not the facts set up by the defendant would have been a complete defense as against a bona fide holder who obtained the note before maturity for value, the defendant should, nevertheless, have been permitted to prove them. A party has a right to prove airy fact relevant to the issue, if proof of that fact will shift the burden of proof.
It is further urged that the evidence was not admissible because the defendant had not denied the partnership in her affidavit of defense as required by the rule of court. True she did not deny the partnership but she did deny in unequivocal terms that this was a partnership transaction. Indeed she set forth all the facts which she offered to prove on the trial. This was a sufficient compliance with the rule to enable her to put those facts in evidence.
Judgment reversed and venire facias de novo awarded.