McGregor, Darling & Curtis v. Cleveland, 5 Wend. 475

McGregor, Darling & Curtis v. Cleveland

5 Wend. 475 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The questions raised by the bill of exceptions are, 1. Whether there was sufficient proof of the execution of the note by Frederick Cleveland; and 2. Whether evidence was sufficient to prove that the plaintiffs composed the firm of McGregor, Darling & Co.

The doctrine how far one partner can charge his co-partner as surety, does not arise in this case. There is no evidence to shew that either of the makers of the note was surety. So far as respects F. & R. Cleveland, the note will be presumed, in the absence of all proof to the contrary, to have been given for a partnership transaction. There is no proof as to what was the style of their firm, except that in two instances the name of F. & R. Cleveland was used. In this instance, one partner wrote the names of both at length thus: “Frederick Cleveland and Rufus Cleveland,” coupling the two names together. Being partners, each had power to charge the other; and, in my opinion, the signature was sufficient, and the evidence enough to justify a verdict on this point against all the defendants.

*477The next question is whether there was sufficient evidence to shew that the plaintiffs composed the firm to whom the note was given. The note being payable to McGregor, Darling & Co., it becomes necessary for the plaintiffs to shew that they are the payees. When a note or bill is payable to a firm, strict proof is required that the firm consists of the plaintiffs on the record. Chitty on Bills, 505. 3 Campb. 240, n. The evidence of partnership usually consists in the oral testimony of clerks or other agents or persons who know that the alleged partners have actually carried on business in partnership; but it is unnecessary, even in criminal cases, to produce any deed or other agreement by which the co-partnership has been constituted. 3 Starkie’s Ev. 1067. More evidence is required to shew the partnership of plaintiffs than that of defendants, because the plaintiffs are cognizant of all the means by which the fact of the partnership is capable of being proved. 3 Starkie’s Ev. 1070. According to those authorities, it is sufficient to prove by a person who knows the fact, that the plaintiffs at the date of the note carried on business in partnership under the name or firm contained in the note as payees. The testimony in this case is rather slight. The witness knows the fact of partnership in no other way than by a letter purporting to be from the firm, and as he believed in the hand writing of one of them, and by information from a merchant. The witness does not know the fact of his own knowledge, as a clerk of the plaintiffs would have known it, or as a person would who had dealt with the plaintiffs, or who could testify to general reputation.

I am of opinion that the proof on this point was insufficient, and that on that ground a new trial should be granted, with posts to abide the event.