Talbott v. Kennedy

Best, C. The appellees, Robert F. Kennedy, James A. Wildman and Constantine B. Cones, sued the appellant and one Alexander Craig, alleging in their complaint that the defendants were partners, doing business under the firm name and style of “Alexander Craig & Co.,” and that said defendants, on the 22d day of February, 1878, “by said firm name and style, executed to the plaintiffs” their note for $200, payable thirty days after date, with interest at ten per cent, after maturity, and attorney’s fees, without relief from valuation laws, and that said note, interest and attorney’s fees were due and unpaid. A copy of the note was set out in the body of the complaint, and was signed “Alexander Craig & Co.” A judgment was rendered against both defendants by default, but afterward, by agreement, the default was set aside as to the appellant, who answered, in substance, that he did not make said note, nor authorize any one to make it for him ; that Craig, his partner, made it, not for or on behalf of [283] the firm of “Alexander Craig &Co.,” but for his individual debt, without any authority whatever to sign the firm name, thereto, all of which the payees well knew when the same, was made to them. This answer was not verified. A reply was filed, the cause submitted to the court for trial, and a finding for appellees- The appellant moved for a new trial, for the reason, among-others, that the decision was not sustained by sufficient evidence. This motion was overruled, and he excepted. Judgment for the appellees. From this judgment the appellant appealed to the general term, and assigned as error the order of the court in overruling his motion for a new tidal. The-judgment of the special term was affirmed at the general term, from which the appellant appeals, aiid assigns as error the order of the general term affirming the judgment at the special term. This assignment questions the correctness of' the ruling of the court upon the motion for a new trial. Several reasons were assigned, but none are insisted upon in the argument except that the decision was not sustained by sufficient evidence. - The appellant was a witness, and testified that he and Craig were partners at the time the note sued on was given that the firm never had any dealings with the plaintiffs; that-the note in suit was made by Craig in payment of an individual debt, and that he had no authority to sign the firm name to it; that the first knowledge he had that Craig was-using the firm name in that way was when one of the plaintiffs brought a note of an equal amount to him, endorsed by the firm, and demanded payment; that he then notified him that the note was given for Craig’s debt, and that he had no> authority to use the firm name; that the note in suit was afterward given in renewal of the other note, without any authority to use the firm name, and, as soon as he learned it,, he repudiated it. Alexander Craig testified that the firm was in need of [284] ■funds; that the appellant wanted him to raise some money ; that he procured a note of equal' amount of his father-in-law, and that, at the instance of the appellant, he procured the plaintiffs to discount it; that $85 of the same was used for individual purposes, in paying interest on a loan, that appellant had consented should be paid from funds of the firm, and the balance was used by the firm; that he-renewed •-said note once or twice in his own name, and then in the name •of the firm; that the first note renewed, in the firm name, was the-one presented to appellant by one of the plaintiffs, which he refused to pay; that afterwards he and appellant talked about it, and appellant said to him that “he supposed they were in for it, and he had better renew it,” and that he Immediately thereafter did so. This is the substance of all the testimony upon the authority of Craig to bind the appellant by the use of the firm name. It is conflicting and unsatisfactory ; yet, as one version of it tends to support the finding,, this court can not, for such reason, disturb the judgment. The- testimony of Craig, if believed, was abundantly suffi-■cient to authorize the finding, and, as it was the province of the court below to determine the credibility of the witnesses, this court can not disturb its conclusion upon such question. Smith v. Kruger, 33 Ind. 86; The Madison, etc., R. R. Co. v. Taffe, 37 Ind. 361. Again, the appellant not having denied, under oath, the execution-of the note, its production, in evidence was sufficient to entitle the' appellees to a judgment. Napier v. Mayhew, 35 Ind. 276. We therefore think the motion for a- new- trial was correctly. overruled. Per Curiam. — It is therefore ordered; upon the foregoing ■opinion, that the judgment below be, and it is hereby, in all things affirmed, at the costs of the. appellant. Petition for rehearing overruled.