Windham County Bank v. H. L. Kendall & Co.

Bratton, J. The first ground assigned and urged in the argument for a new trial is, that the jury were not properly instructed as to the sufficiency of. the notice. The direction given to the jury assumes, that George Kendall, being a member of the firm of H. L. Kendall & Co., had authority, as a member of that firm, to waive notice of non-payment by the maker of the notes, or to direct any particular mode of notice of dishonor; and that such waiver, or direction, was binding upon the firm so long as he acted fairly towards his copartners ; and though he acted unfairly or fraudulently towards them, they were in like manner bound, unless the holder knew that George Kendal was acting unfairly, or had reason to believe that he was so acting towards his copartners ; that is, so long as the holder was innocent of any such purpose. To this direction, no valid objection has been suggested. It may be admitted, that a partner has no right, as against his co-partners, to waive notice upon a note endorsed by him, in the name of the firm, for his own benefit. He has no right to defraud them, or to do any act whereby they may be defrauded. But the endorsement and negotiation of promissory notes and bills is within the scope of the partnership business; and as to everything within the scope of that business, every partner, by virtue of the partnership, is clothed with the power to act for the firm,— to use its name, — and in that name to do every act which the firm collectively might do, whether it be to make or endorse notes or bills; and because the firm might waive notice of dishonor upon a bill or note endorsed by them, any one of the partners may do the same thing, in the name of the firm ; and so may he, for the same reason, direct the mode in which notice of dishonor may be given. It is not the less binding upon the other members of the firm, that the waiver, or direction as to the mode of notice, *85 be not made during the running of the particular note. Union Bank v. Hyde, 6 Wheat. 570, assumes, though it does not directly decide, that it may be made as to all notes of which the same party might thereafter become the bona fide holder. It may be, (and often is so,) that by means of this power, vested in the several partners, a partner is enabled to appropriate to himself the funds of the firm, and to prevent any notice of dishonor Coming to the other members. This, however, is a result of the power conferred upon such partner by the injured members, and should fall upon them, rather thfin upon an innocent holder. The only question in such cases is, had the holder of the note notice of the fraudulent or wrongful act of the partner, so as to become a participant in it ? This question has been submitted to the jury, and they have passed upon it, and found that he had no notice. Jarvis E. Burrows, a witness sworn on the trial, testified, that in a conversation with the firm, there being present Iliram and Henry L. Kendall, at Providence, 'Hiram Kendall said to the witness, — “ We let George do pretty much as he has a mind to. You need not be alarmed. If anything happens to him, you shall be taken care of, and your bank that .the witness, at this time, was in Providence to enquire if the firm was good. It is claimed •that this testimony had no tendency to show any authority conferred by the firm upon George Kendall to use the name of the firm for his own benefit,' and that the jury should have been so directed, and the evidence excluded from their consideration. The tendency of this evidence may be weak. Its weight, however, was to be determined by the jury, and not by the court. It certainly tended to show that these partners had given their copartner a pretty extensive license to' act for the firm, and that from the exercise of that license, they did not intend that the plaintiff should suffer, whatever might happen to that partner; and we think it was evidence proper to be weighed by the jury upon this question of authority; aqd there is no just exceptioto the charge that it was left (to their consideration. . Neither do we think that the evidence, said .to be newly discovered, furnishes any sufficient ground for a new trial. The evidence, so far as it is new, comes principally from Silas M. Waite, the cashier of the bank, and who was a witness upon, the trial, *86 produced by tbe plaintiffs and cross-examined by tbe defendants. The only additional facts derived from him, as contained in his deposition taken since the trial, relates to certain entries on the books of the bank, in relation to the discount of the notes now in suit. He testified on the trial, that he did not know, and had no reason to apprehend, that the endorsement of the name was for the private benefit of George Kendall, or that it was not for the use of the firm. But it appears from his deposition, now produced, that upon the books of the bank are certain entries relating to the notes now in suit, viz.: in the book of discounts, the entries are— “ George Kendall, George Kendall, H. L. Kendall & Co., June 22, 1859, 8 months, .... $1250 George Kendall, George Kendall, H. L. Kendall & Co., June 22, 1859^ 3 months, .... $1250 ” And on the journal of cash credits, under date of June 28, 1859, was this entry— “ George Kendall, . . . $1211 25 1211 25 — $2422 50” There were similar entries under date of December 3d, 1858, and March 26th, 1859, in the discount book, and in the journal of cash credits. Upon the trial, the point was made, that the plaintiffs knew, when they discounted these notes, that the proceeds were for the private use of George Kendall, and the witness now says, that, notwithstanding these entries, he did not know that the proceeds of the notes were for such use, or were not for the use of the firm; and the entries are explained by the witness thus : — that the first name is that of the person presenting the note; the second, that of the maker; the third, that of the endorser; and that the name in the cash journal is that of the person who received* the money; but none of the entries show for what use the money was paid by the bank; that the money was not paid upon the check of Geox-ge Kendall or of the firm, and that no account was kept with him of these proceeds. Whether these proceeds were known to the bank to have been for George Kendall, was one of the questions submitted to the jury, and upon which they have passed. The evidence now pro *87 posed to be offered upon a new trial is merely cumulative upon that point; and as such, furnishes no ground for a new trial, even though it had been derived from a witness not before examined, and who might be supposed to know all that is now disclosed. Neither does it fall within the exception to the rule as to cumulative evidence, that it must be of so controlling a character that it would probably change the verdict. Indeed, it seems to us to add very little weight to the evidence adduced on the trial, upon this point. The evidence of the other witness is not stronger. Upon the admission ofthe testimony of both, the evidence would be still conflicting upon the very matter in issue in the former trial; and the matter in issue would not be essentially more plain or certain than before. A new trial denied, with costs.