Ellinger's Appeal

Mr. Justice Green delivered the opinion of the Court The obligation upon which the judgment in this case was entered was, in terms, the promissory note of two individual persons, Joseph Partridge and James Ellinger, with an added clause containing an authority to confess judgment, with waiver of exemption and inquisition, and provision for an attorney’s commission. It was not under seal. Nothing appears upon the face of the instrument indicating that it was, or was intended to be,a partnership obligation, or designed for any partnership use. It was dated April 1st, 1874, and was payable three years after date. Judgment was not entered upon it until November 21st, 1885, which was more than eight years509 after its maturity. Prima facie at the time of the entry of judgment it was barred by the Statute of Limitations, and the plea of the statute was a good defence to it. Under our more recent decisions this was good cause for opening the judgment and letting the defendant into a defence: Herman v. Rinker, 106 P. S. R., 121; Sossong v. Rosar, 112 P. S. R., 197. One of the defendants, James Ellinger, applied by petition to the court below to open the judgment, alleging that the other defendant, Partridge, was the .principal debtor, and himself a surety only, that he had never received any part of the money borrowed, and had no interest in it except as bail for Partridge, and that he had never made any payments on account either of principal or interest on the note, nor authorized any person to make any payment for him, nor in.any manner acknowledged or promised to pay the note within six years before the entering of judgment. On this petition the court granted a rule to show cause why the judgment should not be opened, but subsequently discharged it. The appellee, the payee of the note, hied an answer saying that the two makers were partners, and that the note was their joint note as partners, that when the money was loaned they both said they were partners and that they were good without surety ; that he did not know what was done with the money nor whether it was to be used by the firm in their business; that the petitioner never paid anything on the note, and that all the payments were made by Partridge, who indorsed upon the note in his own handwriting all the payments that were made; that Ellinger was present at least once wlxen a payment was made and saw it made, but does not say when it was, or whether it was within six yeai’s, and that Partridge axid Ellinger continued to be partners until within six yeax’s, during which time payments were made. Upon this answer it is evident that unless the instrument was a partnership obligation, or the debt was a partnership debt, or the money was used for firm purposes, or the makers declared to the payee that it was a debt of that character, the note is subject to the bar of the statute. Of course it is manifest by mere inspection that the note is not a partnership obligation. It is the individual obligation only of the two makers. There is nothing in its lan-' guage purporting that it was given as a finn note. There is no aliegatioxi in the answer that the debt Avas in fact a firm debt, or that the money was to be used, or was used, for firm purposes, or that either of the makers so told her. She adxnits that Ellinger never paid anything on account of the note, and that all the payments were made by Partridge, and she does xiot allege that Ellinger ever acknoAvledged or .promised to pay the note Avithin six years before judgment. Of course 510 two partners may contract with another as individuals, and when they do so, their contract is individual and not partnership, and must be so treated by the law. Here the whole case for the plaintiff rests upon parol declarations said to have been made by the parties contradictory to the character of their written obligation. The solution of the controversy rests entirely uppn verbal testimony, and such testimony belongs exclusively to the province of a jury. The defendant,.Ellinger, has a right to be heard, and to be heard before a jury, upon the question of his obligation upon the instrument in question. If we regard the depositions taken under the rule to show cause, they do not alter 'the character of the question or the controversy. On the face of the paper the plea of the statute is a good defence. Everything else is in parol. We think the rule to open the judgment should have been made absolute. The order discharging the rule to show cause why the judgment should not be opened and the defendant let into a defence is reversed, and the rule is made absolute, and record remitted for further proceedings; the costs of this appeal to be paid by the appellee.