83 Mich. 555 | Mich. | 1890
This suit was brought to recover the amount due on the following promissory note:
“ $1,000. Muskegon, Mich., April lg^T$88.
“Three months after date we promise to páy.ao the order of Nathan Platt, guardian, one thousand dollars, at the Merchants” National Bank, Muskegon, Michigan, for value received, with interest at the rate of eight per cent, per annum.
“Natitan Platt & Co.”’
The note was indorsed as follows:
*557 “Pay to the order of Peter Wintermute.
“Nathan Platt, Guardian."
The cause was commenced by declaration on the common counts in assumpsit. Defendant John Torrent pleaded the general issue, and filed an affidavit denying the execution of the note.
It appears that prior to December 13, 1886, the defendants, Torrent and Platt, were copartners in business, .under the firm name of Nathan Platt & Co. On that day, notice was given by them of a dissolution of the partnership, which notice contained the statement that—
“All debts and liabilities'of said copartnership have been assumed and are to be paid by said Nathan Platt, and all debts owing to the firm are to be settled with him."
It appears that the debts at this time amounted to some $15,000 and upwards. On December 29, 1886, a new copartnership was formed between the parties, under the same name,—Nathan Platt & Co.,—to which, as shown by the articles of partnership signed on that day, Platt contributed $15,000 in goods, and Torrent $5,000 ih money or its equivalent. Platt was to give his personal attention to and take charge of the business, and to receive a salary of $1,500 per annum. The stock to be carried was not to exceed $25,000 without Torrent’s consent obtained in writing. Torrent agreed that he would . from time to time loan to the firm sufficient moneys for the purpose of purchasing goods as the same might be needed for that purpose, such loans to be evidenced by the firm’s promissory notes, payable to the order of Torrent, and bearing interest at 7 per cent. Platt was to have three-fourths and Toirent one-fourth of net profits. The partnership articles contained the following clause:
“It is further expressly agreed that no goods, wares,*558 merchandise, or property shall be purchased by or for the firm on credit, but all such purchases shall be made for cash, and paid for according to the usual custom in such cases, taking advantage of advance dating of bills; otherwise, second party is to be the only creditor of the firm.”
Defendant Nathan Platt is the guardian of certain minors, being duly appointed thereto by the probate court of Muskegon county. As shown by his testimony given upon the trial, he gave Nathan Platt & Co. a check for $1,000 upon the Merchants’ National Bank 'of Muskegon, signed by himself as guardian of these minors. For this check, he gav.e the note of Nathan Platt & Co. to himself, as guardian, for $1,000, this being the note in suit. He testifies that the check went into the bank to the credit of the firm of Nathan Platt & Co., and made the journal entry on their books “Merchants’ National Bank to N. Platt, guardian, check for our note at three months, interest at eight per cent.” This was charged to the bank in that entry, and credited to bills payable, and went into bills payable of the firm. Mr. Platt testifies that the special occasion for making this note and procuring the money was that the firm of Nathan Platt & Co. owed a note to E. S. Jaffray & Co. for about $500; that he sent them a renewal note, which they declined to accept, and returned it, and demanded its immediate payment; and that the necessity of paying the note was the occasion of borrowing this money from himself 'as guardian, and to meet some other matters that were necessary to be met about that time.
It was insisted by Mr. Platt upon the hearing that he was not to pay the debts of the old firm, but that they were to be paid out of the funds of the new concern, and he so testified. It appears further from his testimony that the money arising from this note was used in thl firm business, either in the payment of some of this
The plaintiff's counsel requested the court to direct the verdict for the plaintiff, which was refused. The court gave two of the defendants' requests, as follows:
“ 1. If, at the time this suit was commenced, the plaintiff, Wintermute, did not own the note in question, and had no interest in it, your verdict must be for the defendants.
“ 2. If, at the time the note in question was signed, the defendant Nathan Platt had no right or authority to sign the firm name of Nathan Platt &■ Co., or to execute the said firm's note to any person other than to said John Torrent, and Nathan Platt, guardian, knew or had notice of that fact, your verdict must be.for the defendants.”
The verdict and judgment were for the defendants. Plaintiff brings error.
Partners between themselves may enter into any lawful stipulations they like, and these are binding upon them. These agreements will not, however, bind third parties who did not know of the agreements. But, in this case, Mr. Platt attempts to bind Mr. Torrent upon
The judgment must be affirmed, with costs.