92 Ill. 305 | Ill. | 1879
delivered the opinion of the Court:
That a partner may, in general, indorse and transfer a promissory note made payable to his firm, is not questioned. It is also unquestioned law, that if a note be made payable or indorsed to several persons not partners, the transfer can only be by a joint indorsement of all of them. Story on Prom. Notes, § 125; Chitty on Bills and Notes, (8 Am. Ed.) 52; 2 Parsons on Bills and Notes, 4r-5; 1 Daniel on Negotiable Instruments, § 684. Says the author last referred to: “If several persons not partners are payees or indorsees of a bill or note, it must be indorsed by all of them. Either one of the joint payees may authorize the other to indorse for him, and an assignment of this interest in the paper from one to the other carries with it such authority. But there is no presumption of law that one may indorse for the other.” Ubi supra.
The question whether there was, in fact, a partnership between appellee and his co-payee, Charles Feickert, is conclusively settled in the negative by the finding of the Appellate Court. (Laws 1877, p. 153, § 89.)
The contention of the appellants, however, is that appellee, by his conduct, induced appellants to believe that appellee and Charles Feickert were partners, and to deal with Charles Feickert under the belief that they were a firm.
The facts upon which this is predicated are: 1st. The names of the payees of the notes are abbreviated and written as “Chas. & Wm. Feickert,” instead of in full, “Charles Feickert and William Feickert;” and 2d, Charles Feickert had possession of the notes.
We can not say, as matter of law, that the mere use of the abbreviated form, instead of writing the name of each of the payees in full, authorised the public to assume they were partners. A firm name might, certainly, be thus expressed. But the abbreviation does not necessarily convey the idea that the names are those of a firm. There are no words expressive of the idea of partnership, company, or association superadded. Such abbreviations as this are frequent in conversation and in writing to avoid the unnecessary repetition of the surname, and may, obviously, be used with quite as much propriety where the design is to express a joint interest merely, as where the design is to express a partnership.
The possession of the note by Charles Feickert, under the circumstances, is of no significance. In all cases where notes are payable to joint payees, instead of partners, the actual manual possession of the notes must be in some one of the payees. It is impossible that it can be in all at the same time. The faces of these notes disclose the interest of the holder—that he is joint payee, and that therefore he holds for himself and for all the other payees—and rebut any presumption that might arise otherwise from the mere possession of the notes.
Where notes are payable to “ bearer,” or to “ order,” possession is prima facie evidence of legal ownership. 2 Parsons on Notes and Bills, p. 42. And possession of a note, not indorsed, by one, other than the payee, affords prima facie evidence that he is the equitable owner. But possession by one, shown on the face of the note to be but a joint payee, could be regarded only as prima facie evidence of the title there disclosed. Illustrations of this may be found in the rule applicable to the possession of property by co-tenants. Freeman on Co-tenancy, § 167; Brown v. Graham, 24 Ill. 628.
The further point is made by the counsel for appellants that, conceding that Charles Feickert could not, by his indorsement of the notes, transfer the title of appellee, yet appellants’ title to the notes and their right to collect and appropriate the money due thereon, exists just as effectually by the delivery of the notes for a valuable consideration paid as if the notes had been assigned to them.
The principle upon which it is held that the indorsement of one partner binds all the members of the firm is that of agency—that each partner, within the scope of the partnership business, is the agent of all the others—but this has no application to mere joint payees, and hence one can not bind the other by his indorsement. Story on Agency, § 39. Neither party being the agent, in legal contemplation, of the other, he can no more bind the other by a sale of the note, without indorsement, than he can by a sale of the note with an indorsement. He has no power whatever to dispose of the interest of his co-payee, either legal or equitable, in the note, without the consent of his co-payee.
Nor do we conceive the fact that Charles Feickert was authorized to collect the notes when due as of any controling significance. This only authorized him to collect when due, not to sell or compound the notes. Thompson v. Elliott, 73 Ill. 221; Padfield v. Green, 85 id. 529.
We see no cause to disturb the judgment of the Appellate Court, and it is affirmed.
Judgment affirmed.