Sylverstein v. Atkinson

Simrall, J. : , Suit was brought by W. A. Sylverstein, president of board of supervisors, against Eliza Ford, executrix of J. W. Ford, deceased, and Atkinson and Warren, members of the firm of Jesse Warren & Co. Clinton Atkinson pleaded the general issue, sworn to, which, under our practice, is the equivalent of the plea of non est factum. The evidence was in substance that J esse Warren signed the firm name to the note. The partnership had no need to borrow money; that Atkinson had no knowledge of the note, and, upon inspection of the books, it no where appeared' to have entered into the business. The universal custom in Marion county was for the principal to sign the note first. From the fact that the name of Ford appeared first on the note, witnesses inferred that Jesse [87] Warren & Co. were sureties, but had no knowledge other than from this circumstance. Jesse Warren & Co. were merchants at Columbia, engaged in buying and selling goods and merchandise. The contestation in the court below, arising on this testimony was, whether Warren signed the partnership name as surety for Ford. The note purports to have been given for a loan of the three per cent fund, and in terms is joint and several. On the face of the paper, all are principals. It is not controverted, that one member of a commercial partnership has not implied authority to sign the joint name as surety for third persons, unless the partnership agreement permits it. If it were true, then, that Warren signed the joint name to this note as surety for Ford, he imposed no liability on his copartner, Atkinson. The inference deduced by the witnesses, that Jesse Warren & Co. were sureties for Ford, because the custom was universal for the principal to sign first, would be entitled to very grave consideration and weight, if it were universally true, also, in Marion county, for no other maker of the note to be interested in the consideration, or to be a principal, except the person who first signs the paper. It is not an unusual thing for two or more (not partners) to be jointly interested in the purchase of property, or in the borrowing of money, and to sign their names to the obligation to pay. And it would be wholly immaterial as to the order of their signing. One partner has a right to borrow money (Winship v. Bank of United States, 5 Pet. 527); nor is it any concern of the lender what he does with it, whether he waste or misapply it. If he apply for a loan for the partnership, and give a note in the firm name, the partnership is bound, though he use it in paying his personal debt. Onondaga County Bank v. Depuy, 17 Wend. 47. The right to sign the joint name to commercial paper is implied, where the business of the partnership is commercial trading. Jordan v. Faler, 44 Miss., and cases there cited. Whenever the name of a commercial partner [88] ship is upon negotiable paper, the firm is prima facie bound, and it devolves upon the member contesting his liability to show the special facts that exonerate him. In this case, Atkinson is presumptively responsible. He can only relieve himself by establishing the proposition, that Warren used the joint name as surety for Ford. The fact that "Warren did not place the money in the business, or the other circumstance that Ford was first signer of the note, does not make good the proposition. Warren, his copartner, was served with process, and his testimony was accessible to Atkinson. He could have explained fully the transaction. Why was he not made a witness % The several instructions prayed by the plaintiff accord with our views of the law, and should have been given, except, perhaps, the fourth, which has no application, and would in no manner aid the jury in reaching a correct conclusion. Partners in general commercial business, only hold each other out to the world, as competent to transact joint business, within the scope of the partnership, and each engages to be bound for the other that far. The first, second and third instructions granted for the defendants are incorrect expositions of the law of the case, and misled the jury. Judgment reversed, and cause remanded for a new trial.