Bruner v. Nisbett

Phillips, J. The first question.presented by this record is as to the sufficiency of the evidence to show the fact of the acceptance of the order which is put in issue by the plea of non, est factum. T. P. Nisbett, a son of plaintiff, wrote the order and handed it to his father, who went out for the purpose of having the order signed and accepted, as he testifies, and on his return with the order, he saw the order and acceptance was signed. He further testifies he presented the order and acceptance at various times to Gilbert Duncan, the deceased partner. “He presented the order many times to Gilbert Duncan and he never questioned it;” that when he presented the order to Duncan “ he would give some excuse or some reason why he couldn’t pay.” The witness further states that the surviving member, Bruner, “knew of the existence of the order; that it was received and accepted by the firm of Bruner & Duncan. I would go up to the foundry and ask to see Mr. Duncan, and he (Bruner) would often say to me, that he was out. I would say to him that I wanted to see about the acceptance of that order, and receive some payment on the order of G-oudie. . He would refer me to Duncan.” The witness further stated that in a recent conversation, the surviving partner stated he “ knew the order and acceptance was out.” The witness did not see the order or acceptance signed, nor did he know the handwriting of either member of the firm, as far as the evidence in the record shows. Under the evidence of this witness, the order and acceptance was allowed to go in evidence to the jury. This is assigned as error, and the sufficiency of the evidence, its admissibility, and the incompetency of the witness is urged in argument. It is sufficient to dispose of the question of the competency of the witness, to say that the record does not show that the witness was objected to, or his interest shown. It was admissible to show admissions and actions of the firm with reference to the acceptance of the order and its genuineness. Paul v. Berry, 78 Ill. 158; Melvin et al. v. Hodges, 71 Ill. 422; Lowman v. Aubery et al., 72 Ill. 519. There was no error in allowing the acceptance to go in evidence. The weight of the evidence in determining where the preponderance was, were questions for the jury; and there being sufficient evidence to authorize this verdict on the question of fact, we will not disturb this judgment. The objection urged in allowing the declarations of James Duncan to be shown is not well taken, as such declarations may be shown by way of impeachment, and that was the purpose and circumstances under which it was shown here, hior is the objection in reference to the cross-examination of B. S. Bruner well taken. The cross-examination of Bruner to which objection was taken—he having in chief denied the execution of the acceptance—was as to whether the bank with which the firm had their account, had, with his knowledge, made payments to the payee of the order on account of the drawer. This was with direct reference to the subject-matter of the examination in chief. If on their—the acceptors’—account, with their knowledge and without objection, payments were made, it was material to show that, in cross-examination on the question as to whether they had accepted the order. It was not error to refuse to allow the defendants to show the financial condition of the firm at time of alleged acceptance, as that fact could not have enlightened the jury as to the question at issue. The refusal of the court to permit the defendant to testify as to whether he told Yolbrecht what the agreement was between Bruner & Duncan and Nisbett & Co., referring to a verbal agreement in reference to paying $2 per week on account of Goudie, is urged as error. Yet the witness did state what the agreement was fully; and when Yolbrecht was called to impeach Bruner in reference to the acceptance of the order, on cross-examination, the fact that, at that time, in the same conversation, the verbal agreement was stated to him—Yolbrecht—as the verbal agreement, was stated by Bruner. The refusal to allow Bruner to state whether he stated to Yolbrecht what the verbal agreement was, could not have prejudiced the plaintiff, even if it would have been proper testimony. At that stage of the case and before Yolbrecht had been called to impeach the witness Bruner, it was not proper, in re-examination, to state an entire conversation between himself and the witness, because of a question being asked to lay the foundation for impeachment. After the impeaching witness had been called, it may have then been proper to recall the witness, to have had his statement of the conversation. It is urged the verdict is excessive, and that, admitting the order was actually accepted by the firm, the death of Duncan dissolved the partnership, and ended the liability of the firm, and that the order was for the payment of $2 per week until note attached was paid; and that inasmuch as at $2. per week from the acceptance, as it appears, until the death of Duncan, he having died in March, 1879, there could not be more than $140 due. It is sufficient to answer this point by saying that the acceptance was an unqualified one— that is, there was nothing except the order and its acceptance according to the terms of the order. It was not a qualified or conditional acceptance. An acceptor of a bill of exchange is primarily liable for its payment. Unless the acceptance is in some manner qualified, if liable at all on the acceptance, the acceptor is liable according to the terms of the acceptance. While it is true that between the parties, an acceptance by one partner of a bill in a matter outside the partnership business will not bind the other member unless it is by his authority, or is ratified by him after knowledge, yet in this ease ,it is a conceded fact that Goudie was working for the acceptors and drawees. It is a fact beyond dispute that he had an account with them, and they were indebted to him; how much and to what extent, and when due, is not shown, as a knowledge conveyed to the indorsee. She took the accepted order without notice; so far as shown here, no qualified acceptance, but a clear and explicit promise. The evidence and finding by the jury is, that the order was accepted. The evidence warrants the finding of knowledge of acceptance by Bruner and the liability is clear. Marine Co. v. Carver, 42 Ill. 66; McDermid v. Cotton, 2 Ill. App. 297. But it is insisted that no consideration being- proven as paid by indorsee for the order, it can not be claimed to be held by an innocent holder. In this case, inasmuch as it appears that in a matter between the firm and one of its employes, the order was drawn and accepted, it can not be regarded as outside the partnership business, and unless it is so, it is not necessary to prove the payment of a consideration by this plaintiff. What we have said with reference to the acceptance and knowledge of surviving partner and the fact of the drawer, drawees and their business being so intimately associated and connected that the acceptance was in line of business, must dispose of the objection made to the instructions. The judgment must be affirmed. Judgment affirmed.