172 Pa. 70 | Pa. | 1895
Opinion by
The duty of the prothonotary in entering a judgment by con fession on a warrant of attorney, under the act of February 24, 1806, is to enter it “ against the person or persons who executed the same,” but this does not restrict him to the name or names appearing in full on the face of the warrant. If it did, then a confession by a partnership in the firm name only, could never be entered up so as to be a valid lien against subsequent creditors: York Bank’s Appeal, 36 Pa. 458. In Overton v. Tozer, 7 Watts, 331, the warrant was signed “ T. C. Smart Jr. & Co.” and was executed solely by Marshall, one of the partners, but the validity of the judgment was held to depend on the authority of Marshall to sign for the others. The prothonotary therefore in entering the judgment may inquire who are “ the persons who executed the warrant,” in the sense of who are the legal makers of the instrument liable thereon, even though they did not put their own hands to it, and their names do not appear on its face.
In the present case the note was made in the firm name, which did not disclose the individual names of the partners. The plaintiff’s attorney filed a formal declaration against the partnership by its title, and naming the individual members, and the judgment was confessed by him and entered by the prothonotary in this form. There was nothing irregular on the face of it, and the court below was not bound to strike it off. The
At the trial the issue turned entirely on a question of fact, whether Elsoffer and McKibben had authority from the appellant, either at the time or by subsequent ratification, to make the note. That appellant was a member of the firm and was liable for the original debt to the plaintiff, was not disputed: In Fichthorn v. Boyer, 5 Watts, 159; it was held that if one partner sign and seal an instrument in the firm name, with the assent of the other, the latter is as much bound as if he had signed and sealed it himself, and his assent can be proved by “ any of the usual modes of evidence.” And this rule has never been departed from: Kramer v. Dinsmore, 152 Pa. 264.
The portions of the charge contained in the third and fourth assignments of error, are in exact accord with the settled rule above referred to. The learned judge told the jury explicitly that there was no implied authority in his partners to bind appellant by such a note, but that if he knew and assented to it he would be bound. He further instructed the jury that although appellant did not know of the giving of the note at the time, yet if he subsequently assented to and ratified it, he would be equally bound. In this there was no error. There was a conflict of testimony as to the principal act of ratification alleged, the appellant claiming that he had only agreed to pay his pro rata share of the debt, while the plaintiff testified that the agreement was to pay his share of the note. The learned judge called the attention of the jury specifically and clearly to this difference, and left it to them to say which was the truth. He could not have done otherwise. Appellant’s promise to pay his part of the note if the jury found that such was his promise, was certainly evidence of knowledge of its existence and its nature, and of assent to it in the form in which it stood. Even if he was ignorant of the legal effect of such a note in making him liable with the others for the whole debt, that would be an ignorance of the law, and not a want of knowledge of the facts which would deprive his act of its force as evidence of ratification.
The eighth assignment is without merit. The jury came in
Judgment affirmed.
