Mack v. Spencer, 4 Wend. 411

Mack v. Spencer

4 Wend. 411 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

It is usual to state in the declaration that the defendants were partners, or that they made the note by the name, style and description of their firm. (3 Chitty’s Pl. 2.) In The Manhattan Company v. Ledyard, (1 Caines, 192,) the question did not arise whether the averment of partnership was necessary, but whether it was sustained by [proving that one of the firm made the note in, the name of the firm. The case of Pease v. Morgan, (7 Johns. R. 468,] was decided on the ground of variance. The dec-, laration in that case, as here, was without any averment that the defendants were partners; but it stated they made the note, “ their own proper hands and. names being thereunto subscribed.” The proof was that one of the firm signed the note, and it was held that the proof did not support the contract as laid. In this case, it is merely stated that the defendants made the note. In the case of Jones v. Mars and anoth*413er, (2 Campb. 305,) the declaration stated that the defendants made their certain bill of exchange in writing, “ their own proper hands being thereunto subscribed;” The bill produced was signed by the defendants’ firm, “ Mars & Co.” On a motion for a nonsuit, Lord Ellenborough’s only difficulty arose from the word hands being in the plural; but he thought the letter s might be rejected as surplusage, and refused the nonsuit. There was no averment that it was made according to the custom of merchants, or by the style and firm of “ Mars & Co.;” and the objection was made which is urged here, that a note should be produced signed by both defendants. The nonsuit was refused on the ground that the defendants could not have been led into any mistake as to the bill sued upon. So here, the defendants could not have been surprized upon the trial. The case is stronger for the plaintiff than that last cited, as the declaration does not state that the proper hands or names of the defendants were subscribed to the note, but simply that the defendants made it. I am inclined to think there is no variance between the proof and the first count, the note being stated according to its legal effect. But if this were doubtful, the second count presents a stronger case for the plaintiff; the charge is, that the defendants were indebted for money lent. A promissory note is evidence of money lent; and being signed by one of a firm, is evidence against both.' Here, there can be no variance, as no instrument is described, and the objection of variance does not apply. The only question is, whether such a note is evidence of money lent; and whether, to make it evidence against both, the plaintiff may prove the partnership. It seems to me no adjudged case can be necessary to shew the admissibility of such testimony.

The nonsuit must be set aside, and a new trial granted; costs to abide the event.