Lessing v. Sulzbacher

Bast, Judge, delivered the opinion of the court. This suit was brought upon a promissory note alleged in the petition to have been executed by the defendants, by the name and style of A. Sulzbacher, whereby they promised to pay, &c. Aaron Sulzbacher alone answers and pleads non est factum, alleging that the note is not his act and deed, and that he did not execute the same, nor was it executed by any person for him. Upon the trial of this issue, plaintiff offered in evidence several depositions tending to prove that at the time of the execution of the note, defendants were partners, doing business in the city of St. Joseph, under the name and style of A. B. Sulzbacher & Co.; and further offered to prove by competent witnesses, that defendants were engaged in the drygoods business; that the consideration of the note in controversy was goods purchased for use and benefit of said defendants, which went into the partnership business. The court rejected this evidence upon the ground that the petition did not aver the existence of a partnership between the defendants, whereupon plaintiffs took a non-suit, with leave, &o. The court having overruled the motion to set aside the non-suit, plaintiffs excepted and sued out their writ of error. We think the court erred in rejecting the evidence offered. The mere fact that defendants were partners, and that the note was given for goods purchased for the use of the firm, and which both defendants had the benefit of, would not, as decided by this court at the present term in case of the Farmers’ Bank v. Bayless et al., be sufficient to establish the execution of the note by both defendants; but they may and probably would be very important as links in the chain of testimony offered for that purpose, and the fact that there is no [447] averment of the partnership in the petition, presents no objection to the introduction of such testimony. IE the note had been executed in the firm name, it would have become necessary to aver who constituted the firm, in order to fix the liability of the defendants; but the averment here is, that the defendants executed the note in the name and style of A. Sulzbacher, and any fact tending to prove that, may be given, in evidence without being set out' in the petition. With the concurrence of Judge Dryden, the judgment will be reversed and the cause remanded.