125 Mo. App. 250 | Mo. Ct. App. | 1907
This is a suit to recover judgment on a promissory note for seventy-five dollars, dated January 22, 1898, due in sixty days, bearing eight per cent interest, alleged to have been executed by J. C. Ogden, Cornelia Ogden and defendant Wesley Wood. Its execution by the Ogdens is admitted. It is also admitted that Wood did not in person sign the note, but that it was written by J. C. Ogden. Wood denies that Ogden had any authority to execute the note in his name. The issue was tried before a jury and a verdict was returned in favor of defendant, upon which judgment was rendered and plaintiff appealed.
The undisputed facts are that Wood was a farmer living within a few miles of the village of Bancroft in Daviess county, Missouri and that J. C. Ogden became an inmate of his family from the time he was fifteen years of age until he married at the age of twenty-two, when he moved to a farm in the same vicinity. In February, 1897, Ogden moved to Bancroft and engaged in the hardware business. About the same time Wood rented out his farm and also moved to Bancroft. In March or April of that year Wood and Ogden formed
The partnership business was conducted until August following when Ogden sold his stock of hardware and moved back to the farm. All the agricultural implements were also sold, except certain articles which defendant carried with him when he moved back to his farm in the month of October. Wood testified that the partnership quit business when Ogden moved from Bancroft to his farm in August and that the partnership was dissolved.
The financial affairs of the firm were had with the Farmers & Merchants Bank of Jamesport and the Gil-man Bank at Gilman City, from both of which Ogden borrowed money for which he executed the notes of himself and Wood. He also borrowed a sum of money from a Mr. Netherton, for which he executed a, note signed by him with his name and that of defendant. The Netherton note bears date subsequent to the time Wood claimed that the partnership was dissolved. Some of the notes to the banks named were given while the business was being carried on, but others bear a subsequent date. Wood denied that Ogden had authority to sign his name to these notes, but the evidence tends to show that Ogden was to be the active and managing partner of the concern and that he had authority to sign his partner’s name in all transactions relating to the business and his after-conduct in paying or securing
The note in suit was executed under the following circumstances. A man by the name of 'Davis, a brother-in-law of Ogden, purchased from the plaintiff a pair of horses at the price of eighty-five dollars, for which he paid in cash thirty dollars, leaving unpaid fifty-five dollars. By agreement, Davis gave plaintiff a note he held on Ogden for a sum somewhat in excess of fifty-five dollars to hold as security for the payment of the latter sum. In a day or two Ogden saw plaintiff and said to him that he had the money to pay the Davis note, but that he needed money to pay some indebtedness of the implement business. Plaintiff agreed to let him have twenty dollars, for which Ogden offered to give him a note including the said sum of fifty-five dollars, but, as there were no blank forms for notes on hand, the matter was postponed. The parties met the next day in Gilman when plaintiff directed Ogden to have his wife also sign the note. The note was written signed and delivered to plaintiff. The plaintiff at the time, however, disclaimed any intention of taking the note in discharge of the indebtedness of Davis.
The plaintiff knew that Wood’s name to the note was signed by Ogden. He also knew that both Ogden and Wood had left Bancroft and moved to their respective farms, and that no business was being carried on by them at that place. He lived within a mile or so of the village and it is presumed had a general knowledge of what Avas transpiring in the small business affairs of the place. On cross-examination he was asked if he kneAV that the signature to the note was not that of Wood. He ansAvered that he did. In substance, he was then asked if his reason for wanting the name of Mrs. Ogden on the note was because he was not willing to take his chances on the names of Wood and
The chief contention of plaintiff is that the verdict and judgment are wholly unsupported by any evidence. The testimony shows that prior to the giving of the note in suit the partners had ceased to do business and had dissolved the partnership. But upon this proof alone the defendant was not entitled to recover, as one partner can bind the partnership by the execution of a note to a third person even after dissolution without notice. [Knaus v. Givens, 110 Mo. 58.] But after its dissolution with notice one partner cannot bind the partnership by the execution of a note for a previous indebtedness. [Knaus v. Givens, supra; Story on Partnership, sec. 322.] The evidence, as stated, we think, has a tendency to show that plaintiff knew that the partnership was dissolved prior to the date of the note. Notice is a question of knowledge and that was a matter for the jury to pass upon.
, The following instruction given at the instance of defendant is claimed to have been error, viz.: “The fact, if it be a fact, that suits were brought on one or even a number of notes to which Ogden had signed defendant’s name, without any authority from defendant to do so, against the defendant, and that defendant made no appearance thereto, or allowed the same to go to judgment by default, such fact would raise no presumption in law that defendant authorized, said Ogden to sign his name to the note sued on.”
The reference in the instruction is to the notes given by Ogden in the name of himself and Wood in the course of the partnership and after its dissolution to raise funds to carry on the business or pay for liabilities already incurred. Suit was brought on some of
Finding no error in the trial, the cause is affirmed.
