Dudley v. Littlefield

The opinion of the Court, Tenney J. taking no part in the decision, having once been of counsel in the action, was drawn up by Whitman C. J. — The plaintiff sues as an indorsee of a note of hand, purporting to have been made by the defendants, to John M. Pollard and John Wheeler, payable to them or their order in two years from August 17, 1835; and indorsed in blank by Wheeler, by putting thereon the names “ Pollard &. Wheeler.” And Wheeler was introduced by the plaintiff, at the trial and testified, that he was authorized by Pollard, to negotiate the note to Isaiah Warren, in payment of a debt, which was due to him from them; and that in pursuance thereof, he indorsed it as above; and delivered it to Warren, long before it became payable; who gave credit therefor by indorsing the amount on a note he held against them. He further testified, that he and Pollard were copartners in buying and selling land. It was objected by the defendants, that there could be no such partnership : and that the indorsement of the note, in the manner above stated, was no transfer of it. These objections are believed not to be sustainable. We do not see why there may not be a copartnership in buying and selling land, as well as in any other vendible property. It is an agreement merely to share in the profit and loss of negotiations. The rules [423] for transferring land may be different from those for the transfer of personal estate; but that can make no difference in the result, as to profit and loss. Copartners in trade often connect the purchase and sale of real estate, with their other negotiations ; and the profit and loss relative thereto goes into the general account thereof; the only difference being, that a different form is used in transferring real estate from that which is requisite in the transfer of personal property. Notes, taken for the price of real estate, may be transferred, as if taken for any thing else; and we cannot regard the transfer of the note, made as before stated, otherwise, than as effectual for the purpose. It was an indorsement by a name which payees might well assume for the purpose ; and the indorsement may be well declared upon, as having been made by them, by the name of Pollard & Wheeler ; especially when accompanied, as in this case, by proof, that the indorsement was specially authorized by Pollard, the other payee. It was next objected, on the part of Littlefield, one of the defendants, that the note was signed by his copartner in trade, by the name of their copartnership firm, and that it was given for the consideration for a purchase of real estate, to which he had never assented ; and in reference to the negotiation for which he had no knowledge, till after the purchase by his copartner; and that the negotiation was wholly out of the line of the business of the copartnership, of which Pollard & Wheeler were well knowing. To obviate this objection the plaintiff proved, that, after the purchase, a certain individual received a bond, signed by Kerswell & Littlefield, the said Littlefield having personally executed the same, in which it was conditioned, that the defendants would convey the land, so purchased by them, to him upon certain terms and conditions therein expressed, the said Littlefield, at the same time, disclaiming any interest therein, and avowing, that he only did it for the benefit of his copartner and declaring, that he never would participate in the profits thereof. The Judge, sitting in the trial, nevertheless ruled, that this was a ratification of the purchase, and rendered the note, on this ground, unobjec [424] tionable on the part of Littlefield. To this ruling the counsel for the defendants excepted. The fact being established, the •Judge undertook to pronounce the legal effect thereof. This, it is believed, he might well do. But it is contended that he misjudged as to the legal effect of the act. It is insisted that Little-field’s constant declarations, that he would have nothing to do with the negotiation, and that he would not participate in the fruits thereof,, did away the effect of his act in executing said bond. To us it seems, that, to render his declarations available to himself, he should have done no act inconsistent therewith. If he would avoid a note given by his partner, in the partnership name, upon the ground that it was unauthorized by their course of business, he should wholly have abstained from doing any act, whereby the property, being the considerations for which the note was given, might become alienated to any third person. If he would rid himself of it, in any way, or do any act concerning it, he should have offered to the grantors a relinquishment of any possible benefit he might have it in his power to derive from it. In such case his acts would have been consistent with his declarations. But when he undertook to aid his partner, by agreeing to convey the land for his benefit, although upon a contingency, life cannot be regarded otherwise, than as having confirmed the doings of his partner, in making the purchase, so far at least as it respected their liabilitjr on the note in question. But the case shows that Warren became the indorsee of the note, for a valuable consideration, and before it had become apparently discredited. And it does not appear that he had any other knowledge of its origin than, that it was given for the land. This could not afford him any ground to apprehend, that the signature of a partnership firm had been unauthorized. For it is certainly no uncommon occurrence for copartners to purchase land, and give their securities for the consideration in the partnership name. This could not fail to have been known to be the case, during the rage for speculation in wild lands, which characterized the period in which this note had its origin. A note so taken by an indorsee has been held [425] to be available in his hands although it might have been given in the name of a partnership firm, in furtherance of a negotiation not within the scope of the partnership concern ; and even although the note were wholly without consideration in its inception. It is said, however, that the note was given for the same land, which the payees had purchased of Warren ; and that he well knew the land to be valueless; and, therefore, that the note was without consideration and void. But we do not see that the case presents the slightest evidence, tending to show any such knowledge on his part. It does not appear that he had ever seen the land; and he found the payees willing to purchase of him, according to the weight of testimony, at one dollar and twenty-five cents per acre, after they had, with two assistants, been upon the land, and explored it. to their satisfaction. And, moreover, we do not, by any means, gather from the testimony detailed in the case, that the land was to be considered as valueless. We therefore regard the note, while in Warren’s hands, as having been valid and recoverable. But it is further contended that the plaintiff, the present holder, who took the note of Warren, when overdue, had been previously cautioned not to purchase it, and had been told, by said Littlefield and others, that it was without consideration ; and had been signed by his (Littlefield’s) partner, without any authority from him to use the partnership name for such purpose. The answer to all which is, that the note was, unquestionably, good in the hands of Warren, of whom the plaintiff purchased it; and that Warren could lawfully transfer to any one else any claim, which he had by virtue of it. We therefore, consider the verdict of the jury to have been properly returned for the plaintiff; and that judgment must be entered thereon.