Miller v. Hines, No. 23

No. 23 | Ga. | Feb 15, 1854

By the Court.

Lumpkin, J.

delivering the opinion.

I deem it unnecessary to notice, in detail, all the specifications of error in the assignments.

[1.] Was it necessary for the defendant, under the Judiciary Act of 1798, to plead non est factum to the paper on which he was sued, in order to be let into his defence ? He seeks to rid himself of the partnership liability attempted to be fixed upon.Mm, upon the ground that the receipt or contract of bailment, for such is the legal import of the instrument sued on, was given by the other member of the firm, and outside of their professional business as attorneys at law.

Now, the plea of non est factum goes to the factum only, of the execution of the paper. And had it 1jeen put in, all that would have been required of the plaintiff was, to prove the hand-writing of the firm signature to be genuine, no matter by which member it was put there. And this the defendant does not deny. The rights of the parties would have stood just as they now do—nothing would have been determined.

[2.] But let us test this point by what we understand to be the law of this case. Prima facie, the execution pf a bill or note in the name of a firm, by one partner, binds the whole, and the burden of proving a presumptive want of authority, lies upon the partners.

[3.] But where the paper of a firm is given out of the partnership business, by one member, it is presumptive evidence of want of authority to bind the other members of the firm, and if the person taking it, knows the fact at the time, he is chargable with notice of want of authority.

[4.] Sometimes the nature of the .contract is intrinsically notice, as was said by Lord Ellenborough, in Green vs. Deakin and others, (2 Starkie, 347.)

Suppose, by way of illustration, that a note had been given by Mr. R. K. Hines, in his life-time, in the name of the firm to the Messrs. Johnsons, of Philadelphia, for law books; here, the firm would not only be prima facie, liable, but absolutely bound, unless notice was brought home affirmatively to the holder, that the books were not intended for the firm. But suppose R. K. Hines, the professional partner of J. B. Hines, at Macon, belonged to another law-firm, located at Albany, and he were to sign the firm name of R. K. & J. B. Hines, to a note for law books for the partners at Albany, of which J. B. Hines was not a member ; here the paper would carry on its very face, presumptive evidence of want of authority in R. K. Hines, to bind the firm of R. EL. & J. B. Hines. And to charge the latter firm, evidence must be adduced, not from the face of the contract, but from facts and considerations, -independently of it. ,

The paper then, which is the basis of this proceeding, not making a prima facie case of liability against John B. Hines, and in order to charge him, some other proof must be offered outside of the receipt—wherefore the necessity of filing the plea of non est factum for his protection ?

We concur with the Circuit Court in holdifig, that presumptively, John B. Hines was not liable on this instrument, and that the burden of proof lying on the plaintiff to make him responsible, the plea of non est factum was not necessary.— Nevertheless, we think he may be made liable by outside proof..

[5.] The record shows that the professional firm of R. K.. & J. B. Hines, represented one of the executions in Houston Superior Court, upon which this money was impounded in the hands of the Clerk, to wit: the fi. fa. of Leroy M. Wiley & Co. At their instance, this fund was directed to be deposited, with the Clerk of the Court,, to be, by him, invested in State fyonds until it was finally disposed of under the judgment of the Court. They were both at C'ourt, participating in the proceedings which were had in relation to it. The rule nisi against the Sheriff to turn over this money to the -Clerk, was in the hand-writing of one of the members of the firm, and the rule absolute in the hamd-writing of the other. How natural it was that the Clerk should consider them as acting as partners in its transmission to the of City Macon, for the purpose of being lodged temporarily in one of the banks there, until the investment could be made.

Mrl John Rutherford was offered to prove that John B. Hines> the defendant, acknowledged to him that the firm had a large conditional fee, depending upon the final adjudication of the Court, respecting the fund. His evidence was- rejected. We think it should have been admitted; and from this and other testimony, the assent of John B'. Hines may be inferred to the transaction, and it brought, from the private and professional interest of the firm in the safe-keeping and investment of the fund, within the scope of their legal partnership.

Judgment reversed.