Myers v. Sprenkle, 20 Pa. Super. 549

Myers v. Sprenkle

20 Pa. Super. 549 | Pa. Super. Ct. | 1902

Opinion by

Rice, P. J.,

Where a judgment note has been signed with the firm name which does not disclose the individual names of the partners, the plaintiff may file a formal declaration against the partnership by its title, naming the individual members, and judgment may be thus confessed and entered by the prothonotary in this *552form: Miller v. Royal Flint Glass Works, 172 Pa. 70. This was the course pursued in the present case. Its regularity is not called in question by any of the assignments of error. The case cited is authority also for another proposition, which is, that if one partner sign and seal a judgment note in the firm name, with the assent of the other, the latter is as much bound as if he had sealed it himself, and his assent can be proved by “any of the usual modes of evidence.” His admission or acknowledgment, subsequently, is strong evidence: Ficthorne v. Boyer, 5 W. 159. It appears that H. W. Myers, the plaintiff, and M. B. Sprenkle, the appellant, together withN. B. Sprenkle and Alexander Diehl, were partners doing business as the Acme Candy Company. The note in question was signed by Diehl thus:

"Acme Candy Co. [l. s.]

Alex. Diehl, Treas. [l. s.] ”

The plaintiff testified that a short time before the execution and delivery of the note, the appellant said to him, “ If you people give me a note for my interest in the firm, and let me out, you and Mr. Diehl can take the stock, and carry on the business if you choose to; ” that the plaintiff replied, “ Why not you people give me a note for my interest in the firm, and let me out of the firm, so that I can look around for something else to do; ” that the appellant then said, “ I am agreed to do that providing Mr. Diehl is agreed to it; ” that when Diehl came in and was in formed of what had taken place, he said to Sprenkle, “ I don’t see fit to give you a note, to let you out of the firm, but I am agreed to give Mr. Mj^ers a note for his interest in the firm, providing Mr. Sprenkle is agreed to that; ” that the latter replied, “ Yes, I am agreed that you shall give Mr. Myers a note for his interest; ” that as they were separating the plaintiff said to Sprenkle, “ Then you are agreed now, and understand that Mr. Diehl shall give me a note for my interest in the firm,” to which Sprenkle replied, “ Yes, I am ; ” that a few days later Diehl gave him the note in question, and about the same time dissolution notices were sent out to customers and creditors ; and that subsequently he received payments, by the hands of Diehl, amounting to 1667.39, on account of the note, one of which was by check signed, “ The Acme Candy Co-” Later *553in his testimony the plaintiff explained that what was meant by his “ interest in the firm” was what he had paid in, and that it was stated in the conversation above recited that the note should be for that amount. If the evidence rested here, it might well be questioned, whether, even assuming its entire truth, it was sufficient to warrant a jury in finding that the appellant assented to the giving of a judgment note with waivers. But the plaintiff testified further, that after the note fell due, he went to the appellant and demanded payment of the note. “ I held against them; ” that the appellant replied, “ There is some more notes out,” and then asked how much the note was; that he told him what the face of the note was, and how much had been paid on it; also that he showed the appellant the note. When asked by the court whether appellant had the note in his hand, the plaintiff answered, “No, he didn’t have it in his hand. I had it in my hand, but held it so he could. see it.” The most significant part of his testimony is in a small compass and we quote it in full: “ He replied again, ‘ There is some more notes out.’ Then I said, ‘ Did you not agree and consent that Mr. Diehl shall give me this note for my interest in the Acme Candy Company ? ’ He replied that was the understanding. Says I, ‘ My note is overdue, and I want the money for it.’ Mr. Sprenkle replied ‘ I will not say any more; you have witness along.’ Then I left.” The plaintiff’s testimony as to this last conversation was corroborated to some extent by that of N. E. Klein and was contradicted by that of the appellant. His testimony as to the first conversation is in direct conflict witli that of the appellant and of Diehl. But as it is not within our province to pass upon the credibility of the witnesses and to find the facts, we need not further allude to the testimony introduced by the appellant. Assuming the truth of the plaintiff's testimony the jury were warranted in finding that there was a precedent agreement on the part of the appellant that a note for the amount he had paid into the firm should be given to the plaintiff in consideration of his withdrawal, and a subsequent admission that the very note which was exhibited to him was the one he had agreed that Diehl might give. The question of the appellant’s assent was one of fact. In determining it the testimony as to what occurred before the giving of the note and as to what occurred afterwards is to be read as a con*554nected whole. Thus viewing it the jury were warranted in finding, if they believed the plaintiff, that the appellant knew the nature of the note, and its amount and assented tout in the form in which it stood. The court was clearly right in submitting the question to the jury, and we find no substantial error in the manner of its submission. The instructions contained in the general charge and the answers to the points relating to this question seem to be in substantial accord with the rulings in Miller v. Glass Works, supra, therefore, the assignments of error relating thereto are overruled. The other assignments of error do not seem to us to require particular discussion. We find no error in any of the rulings which requires a reversal. The controlling question in the case was one of fact and it was submitted to the jury in an adequate and impartial charge.

All the assignments of error are overruled and the judgment is affirmed.