Newman v. McComas

Bautol, C. J., delivered the opinion of the Court. This suit was instituted on the 5th day of February, 1873, by the appellant against the appellee and George M. — 78 — MeComas, as partners. The appellee only was summoned, and the action proceeded against him alone. The nar. contains five counts. The first need not be particularly stated, as it is imperfect, and sets out no legal cause of action ; the second, third and fourth are the common money counts, and the fifth a special count on a promissory note of the defendants for $2068.23, payable to the plaintiff on demand. The pleas were “never indebted as alleged,” “never promised as alleged” and Limitations. It is unnecesary to state in detail the testimony in the case. The partnership was proved to have been formed in 1855, and to have been engaged in carrying on the hardware business in Baltimore, under the name of J. E. and George M. McGomas. Evidence was given by the defendant tending to prove that the partnership wras dissolved in 1860, and that the plaintiff had notice of the dissolution. On the other hand, evidence was given by the plaintiff, tending to prove that such dissolution had not taken place, and that the partnership continued to exist till the date of the note; and that the same was given for pre-existing debts of the firm. The note was signed with the name of the firm by George M. MeComas, and proof was given by the plaintiff of promises made by him to pay the money due upon the note. The grounds of defence were The Statute of. Limitations, and secondly, that the partnership had been dissolved long before the note was given, which was known to the plaintiff, and that George M. MeComas had no power or authority to bind the appellee by the note in question. The only bill of exceptions was by the plaintiff, to the rulings of the Circuit Court upon the prayers. These present the only questions for decision on this appeal, and will be considered in their order. • 1st. There was no error in refusing the plaintiff’s first prayer. It is liable to the objection urged by the appellee, that it assumes the .fact of the absence of knowledge or — 79 — notice of the dissolution, on the part of the plaintiff, instead of submitting it to the jury. Such objection may still be urged in this Court, in support of the ruling of the Court below in rejecting a prayer. The rule which precludes objections of that kind in the appellate Court, refers to prayers or instructions granted by the Court below. But waiving this objection, which applies rather to the phraseology than the substance of the prayer, and construing it as submitting to the jury the question of notice, still it would have been error to grant it, because it placed the plaintiff’s right to recover, entirely upon the fact that she had no knowledge or notice of the dissolution of the partnership ; omitting altogether to submit to the jury the other facts, material to establish the plaintiff’s case, and ignoring the proof offered by the defendant, and his defence under the plea of limitations. Such a prayer has often been decided by this Court to be defective. We need only refer to the case of Schillinger vs. Kratt, 25 Md., 49. The second, prayer has not been insisted on by the appellant’s attorneys, it is obviously defective and was properly refused. The third prayer of the plaintiff as it was offered is defective in several respects. It makes no reference to the question of the dissolution of the partnership, or the want of notice thereof to the plaintiff; but rests upon the proposition that the firm continued when the note was given, and yet it specifies no time as to the existence of the partnership. It does not definitely submit to the jury to find that the firm existed when the note was given, and when Geo. M. MeComas promised to pay it. The prayer proposed to submit a question of law to the jury, viz : whether the promise of George had been made “ before the Statute of Limitations had attached to the note,” instead of leaving to them simply to determine whether such promise had been made within three years after the date of the note. It tailed also to submit to the jury to find that such promise had been made tvilhin three years before the institu — 80 — tion of the suit, which was necessary to remove the bar of the Statute. For these reasons the third prayer was properly refused. These defects in the prajrer were corrected by the Court, and it was granted as modified. We find no error in the prayer as granted. The fourth' prayer is based upon the theory that the partnership had been dissolved in 1860, 1861, or 1862, and claims a right to recover upon the ground that the plaintiff had no notice or knowledge of the dissolution before the note was executed ; but the prayer is contradictory in its different parts. It requires the jury to find that the partnership was dissolved in 1860, 1861 or 1862, and also to find that the note, which is dated in July, Í868, “ was executed and delivered to the plaintiff by said partnership.” Furthermore, the third prayer is incorporated in and forms a part of the fourth, and the facts stated in the former are required to be found by the jury, together with those stated in the latter, which is impossible; for the jury could not find that the partnership continued when the note was executed, and that it had been dissolved several years before. The Circuit Court was therefore right in refusing to grant the fourth prayer, which could not fail to mislead and confuse the jury. In the defendant’s prayers which were granted, the plaintiff had the benefit of the law, upon the question of the necessity of notice to the plaintiff, in order to affect her with the consequences of a dissolution of the firm before the note was given. We find no error in granting the two prayers of the defendant. The first groups a number of facts together, and asks the Court to say to the jury that from the facts so enumerated if found by them, uthey may infer that the firm had — 81 — been dissolved, and that the plaintiff kneiv it, when the note was given.” We see no well founded objection to this prayer. Unquestionably the facts therein stated, if found by the jury would authorize them to draw the inference of fact sought to be deduced from them. This is the whole proposition asserted in the prayer, it is limited in its scope, and does not assert as a conclusion, that the defendant is entitled to the verdict, nor is it imperative or mandatory upon the jury requiring them to find the conclusion, from the facts stated, and is not to be confounded with a very different class of prayers, such as were considered in McTavish vs. Carroll, 7 Md., 366; Miller vs. Turner, 16 Md., 142; Adams vs. Capron, 21 Md., 205; and Winner vs. Penniman, 35 Md., 168, cited in argument by the appellant’s counsel. In State vs. Hammond’s Exc’rs, 6 G. & J., 157, 168, 169, a prayer similar to the one now under consideration was approved by our predecessors, and the Court said it was error to refuse it. The same point came before the Supreme Court in Columbia Ins. Co. vs. Laurence, 10 Peters, 507, 518, 519. In that case the Court was asked to instruct the jury that from certain facts stated in the prayer, if found by them, they ought to presume another fact, sought to be deduced as a conclusion from those stated. The Court decided that the instruction was properly refused, because it was in terms imperative upon the jury, and if granted would have been an invasion by the Court of the province of the jury, to whom it exclusively belonged to decide all presumptions of fact. But the Court said “if the instruction had merely asked that the jury might presume or were at liberty to presume, dec. upon the facts and circumstances as slated, there would not have been any just objection to it.” The first prayer of the appellee in this case went only to that extent, and it was not error to grant it. — 82 — The second prayer is based upon the theory that the partnership had been dissolved, and that its dissolution was known to the plaintiff before the note was given; and claimed the verdict for the defendant, provided the jury should so find, and should also find that George M. McOomas had no authority from the defendant to sign the note, or to admit the same to be due and promise to pay it, although such admission and promise was made within three years before the institution of the suit. There is no evidence in the case that the defendant authorized his former partner, George, to give the note in question, or to bind him by a promise to pay it; the only evidence on that subject is that the note was given, and the promises made by George, without the knowledge, consent or authority of the defendant. But the appellant has no right to complain, that this question was submitted to the jury. It is settled by the case of Ellicott vs. Nichols, 7 Gill. 85, that “ the acknowledgment of one partner, of a subsisting partnership debt, if made subsequent to the dissolution of the partnership, and after the Statute of Limitations has operated on the demand, is not evidence against his co-partners, so as to deprive them of the benefit of the statutory bar.” (p. 108.) The dictum to the contrary in Ward vs. Howell, 5 H. & J., 60, was expressly overruled in Ellicott vs. Nichols. From this decision it follows, that if the pre-existing debt of the firm, secured by the note was barred by Limitations, at the time the note was given, the defendant would not be liable upon the note, the same having been made without his knowledge or authority. But assuming that the pre-existing debt was not barred, when the note was given, it is clear that the admission or promise of George, if made without the defendant's authority, though made within three years before the institution of this suit, could not revive the right of action — 83 — on this note against the defendant or deprive liim of bis defence under tbe Statute. (Decided 22nd June, 1875.) We are therefore of opinion that the second prayer of the appellee was properly granted. Judgment affirmed.