Powell v. Messer

Wheeler, J. Two grounds are relied on for reversing the judgment: first, that the Court erred in refusing instructions asked by the defendants ; second, that the verdict was not warranted by the evidence. The general correctness of the charge of the Court is not questioned ; and there is nothing better settled in the practice of this Court, than that a judgment will not be reversed on the account of the refusal of instructions, where the law of the case has been fully and accurately given in the charge to the jury. It is the right of the party to have the jury instructed upon the law of the case ; but when this has been done, more can not be required. Where the Judge has embodied in his charge rules of law applicable to the case, in such form and — 406 — connection as to give to each no more than its due relative prominence, to repeat portions of the charge in the form of distinct and independent propositions, may not unfrequently have the effect to give to the principles thus enunciated an undue prominence and importance in the minds of the jury, and thus to mislead them in the application of the law to the evidence. It is the manifest duty of the . Court to guard against such a consequence ; and to that end, it may be proper to refuse instructions to which there is no objection in point of law. Legal propositions, not wholly inapplicable to the case, may be so framed and presented, as to render the givitig of them, in the form in which they are proposed, manifestly improper. Instances of this kind are not unfrequent in practice ; and hence has arisen the rule, that the Court shall not be required to repeat a principle of law, which has already been given in charge to the jury, though under a different form of expression. The present is a fit case for the application of the rule. The instructions refused recapitulate under different forms of expression, a doctrine, which is, in general, correct: that is, that one partner cannot bind the firm to the payment of his individual debt. But in its application to the facts of this case, it required to be considered in connexion with other principles, which the charge of the Court contains ; and to have given the instructions as asked, without the additions and qualifications necessary to the correct application of the law to the case before the Court, would have been to give an undue prominence to this doctrine, in the minds of the jury, and possibly to have misled them. There is no question as to the rule, that if a person takes a partnership security from one of the partners, for what is known at the time to be an individual debt of the partner who gives the security, the other members of the firm will not be bound by it. This principle was distinctly stated in the charge. There could be no question as to that. But whether the note sued on was taken for the individual debt of the — 407 — partner who gave it, and known to be such by the creditor, was a question ; and it was matter of defence, which it devolved on the defendants seeking to absolve themselves from liability, to prove. Prima facie, the execution of a bill or note in the name of the firm by one partner binds the whole, The burden therefore of proving a presumptive want of authority, and of course fraud, for that necessarily follows, lies upon the copartners. (Story on Partnership, Sec. 133, n. 3d ed.; 11 Johns. R. 544, 546-7.) But when the fact is once established, that the partnership security was given for the individual debt of one of the partners, then, according to the American authorities, it devolves on the creditor to prove the acquiescence or consent of the other partners in order to hold them bound. In England the rule seems to be different. In Dob v. Halsey, (16 Johns. R. 34,) Chief Justice Spencer stated the difference between the decisions in this country and England to be, that in this country, at least in New York, the Court required the separate creditor, who had obtained the partnership paper for the private debt of one of the partners, to show the assent of the whole firm to be bound ; while in England, the burden of proof was on the other partners to show their want of knowledge, or dissent. (See Rogers v. Batchelor, 12 Peters R. 229, and authorities collected in the notes to Story on Partnership before cited, and see 2 Robinson’s Practice, 334-5.) The charge of the Court asserts the rule, as held in this country, as to the burden of proof, which was certainly most favorable to the defendants. The true questions in the case, which the jury were to decide, were, whether the note was given for the individual debt of the partner who gave it, whether this was known to the plaintiff, and if it was given for what was known to be the individual debt of the partner, whether the defendants consented to the transaction. These were the questions which arose upon the evidence. And thereupon the Court, adapting the charge to the very case in hand, told the jury, in substance, that it devolved — 408 — defendants, who disclaimed the obligation of the note, to prove that it was given for the individual debt of their copartner. And if it was so given, the defendants were not bound unless they had admitted the obligation of the contract. The charge was correct, and has the merit of being clear, concise, pertinent to the evidence, and sufficiently comprehensive to enable the jury rightly to understand the law of the case. And there was no error in refusing the instructions asked by defendants. It only remains to consider whether the verdict of the" jury was warranted by the evidence. And we are of opinion that it was. It was not conclusively proved that the note was given for the individual debt of the partner ; or that the transactions and dealings between the parties, was of such a nature, as that the creditor knew, or should have known, that it was not on account of the partnership, but for the individual debt of the partner, that the note was given. But if it was given for what is known to be his individual debt, there are circumstances strongly tending to the conclusion that it was with the consent of his copartners. It was entered upon the books of the firm ; it was the subject of remark by their book-keeper and clerk at the time, whose duty it was. to apprise them of it; and though they did not reside at the place, it is quite improbable that they remained ignorant of it until after the bringing of this suit and the death of the creditor. Moreover they paid the draft drawn for a part of what is said to be the same individual debt. It is not probable that they paid this draft without knowing on what account it was given. It is scarcely to be supposed that they were so indifferent to the manner in which their co-partner was managing their affairs, as not to have obtained information of this transaction; and their silence for such a length of time, under the circumstances, is very cogent evidence that it was with their consent. Certainly, it would seem, the creditor had reasonable ground of belief that the partner with whom he dealt was acting with — 409 — the consent of the other partners ; and that, according to the English authorities, was sufficient to bind them. In Frankland v. McGusty, (1 Knapp, R. 315,) Sir John Leach, (Master of the Rolls,) held this language : “ I take it to be clear, from all the “ cases on the subject, that it lies upon a separate creditor, who “ takes a partnership security for the payment of his separate “ debt, if it be taken simpliciter, and there is nothing more in “ the case, to prove, that it was given with the consent of the “ the other partners. But there may be other circumstances “ attending the transaction, which may afford a separate credi- “ tor a reasonable ground of belief, that the security, so given “ in the partnership name, is given with the consent of the “ other partners;” and he cites the case of Ridley v. Taylor, (13 East, 175,) and continues: “In that case, the bill was “ dated eighteen days before its delivery by the partner to his “ separate creditor, and it was not known by the creditor that “ it was drawn and indorsed by the debtor alone ; and the bill “ was to a greater amount than the separate debt. The Court “ therefore were of opinion, that there was reasonable ground “ for the separate creditor believing it not to have been “ given to him in fraud of the partnership, and that the gene- “ ral presumption, that a partnership security, when applied in “ payment of a separate debt, is in fraud of the partnership, “ was repelled by the particular circumstances which belonged “ to that particular occasion. Upon a consideration therefore “ of all the authorities, I am of opinion, that the law is, that, “ taken simpliciter, the separate creditor must show the knowl- “ edge of the partnership ; but if there are circumstances to “ show a reasonable belief, that it was given with the consent “ of the partnership, it lies upon the partners to prove the “ fraud.” But taking the rule of the American Courts, as stated by Judge Story, that when a note or security of the firm has been taken in discharge of a separate debt of one partner, the burden of the proof is on the creditor or holder to show circumstances sufficient to repel every presumption of — 410 — fraud, or collusion, or misconduct, on his part, (Story on Part. Sec. 133,) or by Chief Justice Spencer, that the separate creditor who has obtained the partnership paper for the private debt of one of the partners must show the assent of the whole firm to be bound, (Dob v. Halsey, 16 Johns. R. 34,) and assuming that the proof sufficiently shows that the note was taken for the private debt of the partner, we think the evidence sufficient to warrant the jury in finding that the transaction was free from fraud, and that the note was given with the consent of the defendants. That the partner who gave the note should have drawn upon his copartners for a part of the same debt, and that they should have paid the draft, and the entry of the note in the books of the firm, are strong circumstances to repel the inference of fraud or collusion, and to show that the transaction was known to the defendants, and that they consented that the partnership might be bound for the payment of the debt. We are of opinion, therefore, that there was evidence sufficient to warrant the verdict; and that there is no error in the judgment; it is therefore affirmed. Judgment affirmed.