Lowry v. Tivy

The opinion of the court was delivered by Pitney, J. This action was brought to recover moneys alleged to have been loaned by the plaintiff to the firm of [95] Tivy & Schmidt, composed of Peter Tivy and August J. Schmidt, as partners, and alleged to have been secured by two promissory notes made by Schmidt individually, payable to the order of the plaintiff, and indorsed with the firm name of Tivy & Schmidt, signed in the handwriting of Schmidt. Schmidt having deceased, the plaintiff joined as parties defendant the administrator of the deceased partner and Peter Tivy as surviving partner. The declaration contains the common money counts, and to it are annexed copies of the promissory notes which are referred to in the declaration and thereby made a part of it, as permitted by section 123 of the Practice act. Gen. Stab., ¶. 2554. The pleader relied upon section 29 of the Practice act {Gen. Stat., p. 2537), entitling the holder of a promissory note, instead of bringing separate actions against the parties separately liable, to include them in one action. No question is raised as to the applicability of that section in a case like the present, for notice of misjoinder was not given in the manner prescribed by section 38 of the Practice act. Gen. Stat., p. 2539. Therefore, the plaintiff was entitled to proceed to trial and recover judgment against either or both of the defendants according as her proofs warranted. Patterson v. Loughridge, 13 Vroom 21; Elliot v. Bodine, 30 Id. 567; Bank of Toronto v. Manufacturers and Merchants Fire Association, 34 Id. 5 (at p. 13). The defendants severed in their pleadings, but the several issues were brought on to trial together without objection. The plaintiff proved the making and delivery of the promissory notes by Schmidt, and proved that the indorsements were in his handwriting and that a partnership existed at that time between Schmidt and Tivy. The notes were thereupon admitted in evidence. They were made long before the enactment of the recent general act relating to negotiable instruments {Pamph. L. 1902, p. 583), and so the present case raises no question of the effect of section 17 of that act, which prescribes that where the language of the instrument is ambiguous certain rules of construction shall apply, and, among others, that where a signature is so placed upon the instrument that it is not clear in what capacity the person [96] making the same intended to sign, he is to he deemed an indorser. Therefore, since the notes in question were the individual notes of Schmidt, payable to the order of the plaintiff, and indorsed in the firm name of Tivy & Schmidt, the indorsement in and of itself alone does not import any contract on the part of the firm. But extrinsic evidence is admissible to show what was the contract of the parties. Chaddock v. Van Ness, 6 Vroom 517; Haydon v. Weldon, 14 Id. 128; Johnson v. Ramsay, Id. 279 (at p. 283); Building Society v. Leeds, 21 Id.. 399; Middleton v. Griffith, 28 Id. 442 (at p. 448). The plaintiff was sworn as a witness and was asked concerning certain transactions alleged to have taken place between her and Schmidt at the time of the making of these notes; she was also asked whether she had loaned moneys to the firm of Tivy & Schmidt at the time the notes were given. These questions were objected to by counsel for the defendants, on the ground that, under the revised Evidence act (Pamph. L. 1900, p. 363, § 4), Mrs. Lowry, being a party to the action, was excluded from testifying to any transaction with, or statement by, the deceased Schmidt. The objection was sustained by the trial court. At the close of the case the court directed a verdict in favor of the plaintiff against Schmidt’s administrator, and granted a nonsuit in favor of- the defendant Peter Tivy, on the ground of want of evidence against the firm. At the instance of the plaintiff exceptions were sealed to the rulings just referred to, and she now brings this writ of error, seeking to reverse the judgment of nonsuit. If the 'administrator of Schmidt had been the sole party defendant, the rulings of the trial judge with respect to- admission of evidence would have been manifestly correct. But as against the defendant Tivy, who was sued individually, and not in a representative capacity, the plaintiff was entitled to give testimony as to transactions between her and the de- ' ceased partner relating to the partnership business. And as the trial was permitted to proceed upon the combined issues raised by the pleas of the several defendants, whatever was admissible in evidence against one defendant was proper evi [97] dence to be admitted in the cause. If either defendant had a right to limit the force and effect of any testimony, this might have been done by proper instructions to the jury. The total exclusion of the evidence offered was erroneous, and the error obviously prevented the plaintiff from completing her proofs as against the defendant Tivy. The judgment under review should he reversed, and a venire de novo awarded.