Barwick v. Kea & Co.

Bleckley, Chief Justice. The action being upon a promissory note, a partnership contract, signed “Wesley Kea & Co. pr. W. K.,” the court charged the jury “that under the plea of general issue, defendants could show that said Wesley Kea had no authority to make said contract” The contract referred to in this instruction must be the note itself or the contract which furnished the consideration for the note. The evidence shows without any conflict that all the members of the firm were present when the note was executed, and there is no suggestion anywhere in the evidence that any of them were not fully cognizant of the consideration for which the note was given. Unless something to the contrary appeared, it should be taken that all the partners, as all were present, assented to any contract or contracts involved in the transaction. Nothing to the contrary is signified by any plea or by any part of the evidence. None of the evidence raises any question whatever upon the authority of Wesley Kea to make a contract or to do any other act in behalf [565] of the firm. It is manifest, therefore, that the charge just recited was based upon an .hypothetical case, and not on the real case which the jury had to try. And it may have done harm; for, taking all the evidence together as it comes to us, we are strongly inclined to the opinion that the verdict, tested by the facts and the law applicable to them, was incorrect. We need not say positively that it was so, because this erroneous instruction, in a doubtful case, would be cause for a new trial; and we direct a new trial accordingly. Judgment reversed.