Ensminger v. Marvin

Dewey, J. The declaration in this case alleges that John Ensminger and Henry Ensminger, by the names and descrip [211] tion of J. H. Ensminger, made their promissory notes, &c. John Ensminger made, default. Henry Ensminger pleaded nil debet under oath, thereby putting the , execution of the notes by him in issue. Verdict for the plaintifF; and final judgment against both defendants. On the trial of the issue with Henry Ensminger, the plaintiff offered proof, that at the time of the date of the notes, the defendants were in co-partnership, and that John Ensminger afterwards made admissions respecting the execution of the notes. The evidence was objected to; but admitted. It is urged that this evidence was illegal, because the declaration contained no averment that the defendants were partners. We do not think such an averment was necessary to render the testimony admissible. The allegation is that the defendants made the notes. Proof that they were executed by procuration would have been competent, without averring the agency. Each partner has authority to bind the firm, but the existence of the partnership need no more be averred in a declaration to let in proof of the execution of a written instrument under that authority, than procuration in any other form need be alleged to render proof of execution by an agent admissible. The defendant, Henry Ensminger, moved the Court to instruct the jury, that if they believed from the evidence he did not execute the notes with .his own hand, though the defendants were partners at the time those instruments were executed, the plaintiff could not sustain his action unless he had proved, by extrinsic testimony, that the notes were given for partnership purposes, or what was their consideration. The Court refused so to instruct, but charged the jury that the notes themselves, executed by one partner in the name of the firm, were prima facie evidence that they had been given for partnership purposes. There was no error in this. . . . Henry Ensminger also moved the Court to instruct the jury, that one partner was not at liberty to change the name of the firm, or to use any other than the partnership appellation, without the consent of his co-partners. This instruction was refused, and for aught we know correctly refused. [212] There is no evidence set forth in the record, that shows it would have been pertinent to the merits of the cause. J. Pettit, for the plaintiffs. A. S. White and R. A. Lockwood, for the defendant. Other instructions were refused, but as they involve only the same principle which has been decided on the question as to the admissibility of the evidence, further notice of them is unnecessary. Per Curiam. The judgment is affirmed, with 2 per cent. damages and costs.