Butler v. . Stocking

The only point which properly arises in this case is, whether the judge at the trial erred in refusing to grant a nonsuit. There is no doubt that the defendant Stocking was not liable, unless the signature "Stocking Hunt, sureties," subscribed to the note of David Hunt was made with the assent of Mr. Stocking. The name of the firm was then subscribed by Alfred H. Hunt the partner of Stocking, but in a business not pertaining to the partnership. The burthen of proving the authority of Stocking for this use of his name, is cast upon the plaintiff. (Foot v.Sabin, 19 John. R. 154; Boyd v. Plumb, 7 Wend. 309;Stall v. Catskill Bank, 18 Wend. 466.) This authority may, like other facts, be proved by circumstances. (Weed v. Carpenter, 10 Wend. 403.) It was proved that about two years before the date of the note in question, Alfred H. Hunt had signed the firm name of Stocking Hunt as sureties, to two notes of David Hunt, for borrowed money both at thirty days, and a short time after they became due, the witness who was the payee of the notes called on Mr. Stocking and informed him that he the witness held the paper of David Hunt with the firm name of Stocking Hunt as sureties in the handwriting of Alfred H. Hunt. Mr. Stocking said, "It is all right, whatever David wants he can have;" that they were not in the habit of lending their names to every one, but whatever David wanted he could have. On his cross-examination he said he would not say whether Mr. Stocking used the words "lending his name" or "endorsing." Great stress is laid on this doubt on the part of the defendant, but it is really of no consequence which form of expression he used. He was told by the witness that the note which he held had the firm name of Stocking Hunt as sureties to it, in the handwriting of Alfred H. Hunt. The conversation of Stocking was called out by that information. He knew, therefore, that it was in that form the firm name had been used, for David. The testimony of Rathbone adds *Page 411 some confirmation to this testimony, since it shows that the friendly relation between Stocking and David had continued down to a later period than the giving of the notes in question, and that at the failure of David, in August 1846, Mr. Stocking was in some form still liable for David to an extent which he could not tell, without reference to his books, and that David's partner had taken him by surprise. I think a jury might well infer from these facts that Stocking had authorized his partner Alfred H. Hunt to use the firm name, as sureties or endorsers for David Hunt.