McConeghy v. Kirk

The opinion of the court was delivered, by Sharswood, J. When a copy is filed in an action against a party secondarily liable as the drawer or endorser of a bill of exchange, or the endorser of a promissory note, under the 2d section of the act entitled “ An Act to establish the District Court for the city and county of Philadelphia,” passed March 28th 1835, Pamph. L. 88, the presumption is that all steps have been duly taken which are necessary to fix liability, such as due presentment, demand of payment at the proper time and place, and [203] notice of dishonor; nor is it necessary that there should be any averment by the plaintiff of these particulars. The defendant must deny them in his affidavit if they do not exist: Sleeper v. Dougherty, 3 Whart. 177. Nor is it sufficient for him in such case to say that he has not received notice. He must go further, and state such facts as will justify the inference that no notice has been given or due diligence used: Moore v. Somerset, 6 W. & S. 262. It is urged, however, that the copy filed in this case shows no endorsement by the payees, and that the defendant assumed the position of third endorser on the note, with the condition implied that the payees should assume that of first endorser, so as to give him recourse against them: Schafer v. The Farmers’ and Mechanics’ Bank, 9 P. F. Smith 144. The presumption, however, certainly is, that J. J. & J. P. Kirk, to whose order this note was drawn, constituted a firm or partnership, and it is an equally reasonable presumption that “John J. Kirk,” the first endorser, was the J. J. Kirk, a member of that firm. If these facts were not so, it was incumbent upon the defendant to aver the contrary. By endorsing the note to the plaintiff he affirmed the genuineness and regularity of the previous endorsemeilts before his own. It is not the case of no endorsement by the payees; but of an endorsement by one of the payees constituting a firm or partnership. Now, it appears to be well settled and recognised by the most approved elementary writers, that one partner may accept or endorse negotiable paper in his individual name, so as to bind the firm, whenever it sufficiently appears to have been on partnership account. “ In all contracts concerning negotiable paper,” says Chancellor Kent, “ the act of one partner binds all, and even though he signs his individual name, provided it appears on the face of the paper to be on partnership account, and to be intended to have a joint operation:” 3 Kent’s Com. 41; Chitty on Bills 58; Byles on Bills 44. “If a bill,” says Lord Kenyon, “is drawn upon the partnership, in their usual style and firm, and it is accepted by one of the partners, it certainly binds the partnership to the payment of it:” Wells v. Masterman, 2 Esp. 731; Manson v. Rumsey, 4 Cowp. 384; Dolman v. Orchard, 2 C. & P. 104. Here a note made to the order of a firm, is endorsed by one of the firm. Primfi facie it is a partnership act, binding upon the firm. It devolved upon the defendant below to deny it, if John J. Kirk was not a member of the firm of J. J. & J. P. Kirk, the payees. Identity of name is prinffi facie evidence of identity of person. The transactions of the world would not go on if this were not so: Byles on Bills 422. Judgment affirmed.