Wood v. . Barber

*79 Smith, C.-J., after stating the case. In McIntyre v. Oliver, 2 Hawks, 209, it was held that the acknowledgment of a subsisting partnership debt by one partner, even after the dissolution of the firm, was binding on all the constituent members and prevented the operation of the statute of limitation. The same doctrine is announced in Willis v. Mill, 2 Dev. & Bat., 231, and Walton v. Robinson, 5 Ired., 341. In the latter case, the same reviving effect is ascribed to a payment as involving a reassumption of the residue of the debt. In consequence of these rulings was passed the act of 1852, now embodied in section 171 of Ti-ie Code, wherein it is enacted: That no act, admission or acknowledgment by any partner, after the dissolution of the copartnership, or by any of the makers of a promissory note or bond, after the statute of limitation shall have barred the same, shall be received as evidence to repel the statute except against the partner or maker of the promissory note or bond, doing the act or making the admission or acknowdedgment. The new promise or acknowledgment, now required to be in writing (The Code, §172), or act, in partial payment, to which the same efficacy is given by the statute, to bind the testator, must have been made or doné during the continuance of the partnership by one of its members acting for all and in the exercise of the agency which springs out of their joint relations. It is by virtue of the implied power of each to bind all that the act of one, within the scope of the business for which the association is formed, is deemed to be the act of all the partners. To give to the payment made by Lippincott the effect of a payment by the firm, he must have acted as a partner or used the common fund in making it, and this must appear if the others are to be bound. The charge of the court ascribes the same effect to a payment coming from the acceptor or its cashier, as if it came from the partnership through one of its members, and seems to proceed *80 upon the idea that a recognition of continuing liability by any of the parties to the instrument imposes upon all the others the same liability, whatever may be their separate obligations under it. The rule does not go to this extent, nor have we found any case supporting this view. To give this effect to the act of one, there must be a community of interest and a common obligation among them. They must be obligors in a bond, makers of a promissory note, drawers or acceptors of a bill, or joint endorsers of either. An admission, direct or involved in the act of payment by one of either class, under the same measure of responsibility, becomes the legal act of all that class, but does not revive the liability of others of a differen.t class. Thus if one of several joint acceptors promises to pay as directed in the statute, or makes a payment, his associate acceptors are bound by what he does; but the drawers are not, because there is no such common interest and responsibility as gives legal force to the act. And so of the other classes who may be bound in like manner. This is the import of the statute, which confines the act, admission or acknowledgment, as the case may be, as evidence to repel the statute, to the associated partners, obligors, and makers of a note. The rule prescribed in the statute, restrictive of that previously laid down in our adjudications as already shown, is in accord with the current of decisions in this state and elsewhere upon the point now considered, and none in conflict has been called to our notice. It is laid down by an excellent writer on the law of Evidence, whose work is among our best, that “ if such payment be made by one of several debtors, who is not otherwise discharged from the obligation, it is evidence against them all,” and he adds, “ the rule is founded on the community of interest among the debtors.” 2 Greenl. Evi., §444. “ The payment by one of the makers of the promissory note,” in the language of DANIEL, J., “according to numerous decisions, took the case out of the act of limitation as to all the makers of the note.” Davis v. Coleman, 7 Ired., 424. So it is declared in a recent case, “ that the payment of interest on the note (in suit) before it was barred by lapse of time, *81 arrested the operation of the statute as to all the makers, sureties as well as principal.” Green v. Greensboro College, 83 N. C., 449. Now, there was no common obligation associating the acceptor with the drawers, and while a partial payment by one drawer would affect the other drawers, or by one of several acceptors would extend to all, and so, as to all who are jointly bound, the act of a person of one class caunot extend to and create or renew a liability resting upon another class. The contracts of the drawers and of the acceptors of a bill are wholly unlike, and the liability of the latter is in front of the liability of the former. The drawer undertakes that his bill shall be accepted and paid from funds upon which he has a right to thus appropriate. The drawer’s liability, in the language of Manly, J., “ is a conditional liability, dependent upon presentation to the drawee and notice of his failure to the drawer. Such a precedent action is indispensable to fix a liability upon the latter.” Brown v. Teague, 7 Jones, 573. We think the defendant was entitled to the instruction that the burden rested upon the plaintiff to show affirmatively that the payment was on behalf of the firm, in order to repel the statute, and that there is error in the instruction that the same result follows, whether the payment was made by the bank or by one of the drawing firm on its behalf. There must be a new trial, and it is so adjudged. Let this be certified. Error. ■ Venire de novo.