6 Md. 5 | Md. | 1854
delivered the opinion of this court.
This action was instituted against the appellants to recover the amount of a promissory note', dated the 23rd May 1850, at six months, for three thousand dollars, drawn and signed by the appellant Samuel Manning, in favor of “Manning, Stimpson & Co.,” and endorsed by them in the handwriting of the said Samuel Manning, and also endorsed by Joseph C. Manning. The appellee is the holder of the note.
The plaintiff below proved the handwriting of Samuel Manning, and the co-partnership of the appellants, under the style and name of Manning, Stimpson and MacTavish. The note was protested for non-payment and notice of the same, given to the appellants by handing, notice of protest to Samuel Manning. On this state of facts* at the trial below, the appellants asked the court to instruct the jury, that if they should find from the evidence that the" signature of the note offered in-evidence, is of the proper'handwriting of Samuel Manning, and that the endorsement, Manning, Stimpson & Co., upon the said note, is also of the proper handwriting of the said Samuel Manning,, then the jury must find their verdict for the defendants, upon the assumption that the transaction in question was the private transaction of the said Samuel Manning, there being no evidence.to show that the matter was known to his co-partners, or either'of them, or that it was given’ or negotiated on co-partnership’account.
This prayer the court refused and we think properly.-
Although it is clear that one partner cannot bind his co-partner in regard to a matter which is exclusively his own* yet the fact of its being his private business must affirma-*
The notice of protest was, under the decisions of this court, clearly defective and insufficient to charge the appellants as endorsers; but under the act of 1825, ch. 117, we are precluded from noticing the point, inasmuch as it was not made at the trial below.
In regard to the application for a procedendo, we remark, that there is nothing of merit disclosed to us by the record, by which we are to be governed, whatever may be the true state of the facts of the case. It was within the power of the parties at the trial, to have availed themselves of the defectiveness of the notice of protest. Not having done it then,, it is now too late. Besides the act of 1830, ch. 186, is a sufficient answer to the application.
Judgment affirmed.