Perrin v. Keene

19 Me. 355 | Me. | 1841

Bv the Court.

Weston had no right, to sign the notes in suit in the name of the firm, unless he derived it from the authority given him to settle and adjust the copartnership business. This does not give him any power to make new contracts, or to create new' liabilities, binding on the firm. No such power can be derived from the agreement that Weston should settle and close the business of the firm. The notes, then, are made and delivered without authority and are not valid against the firm.

Is the account still existing and may it properly be introduced into the writ by way of amendment, by adding a new count for that purpose? In England and New-York a note given on the settlement of an account is not a discharge of such account. In this State and in Massachusetts it is otherwise. But in these States it is held to be only prima facie evidence of a discharge, and, of course, is open to explanation. Hence, in Vancleef v. Therasson, 3 Pick. 14, it was held that when a note was given in New-York, in discharge of an account, and the suit was commenced on the account in New-York, that the plaintiff could not, under leave to amend, file a count on the note, because it was a new and distinct cause of action. The note, by the law of New-York, not being a payment, did not discharge the account. But in Ball v. Claflin, 5 Pick. 303, with perfect consistency, it was held that the giving of a new note is not a payment, and that both may be considered as the same cause of action. So in this State, in Newell v. Hussey, in the county of Lincoln, it was held that when an account is sued and a note had been given for it, that the note could not come in by way of amendment, being a new cause of action.

This note, given without authority, does not extinguish the account. If it did, it would be a new cause of action. If not, then the account remains the same subsisting demand and may be brought in by way of amendment. 5 Pick. 303. If the notes were given without authority, they were not a payment of the debt, and the account remains undischarged. It may be said, that the note binds the agent or partner who made it, even if he undertakes to use the copartnership name without authority. The answer is, it can bind him alone, and the plaintiffs did not intend to take the note of Weston alone. They meant to have the security of the copartnership. The note, then, being the note of Weston alone, the presumption of payment is rebutted.

The notes having been declared on as the contracts of the parties sued, and being for the same subject matter as the account, and not having the legal effect to discharge the account, the amendment may be rightfully made.

The defendants must he defaulted.