15 Ga. 197 | Ga. | 1854
By the Court.
delivering the opinion.
I deem it unnecessary to notice, in detail, all the specifications of error in the assignments.
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.
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..
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.