Tyree v. Lyon, Murphy & Co. , 67 Ala. 1 ( 1880 )

BRICKELL, O. J.

— The promissory note on which suit is founded having been given in renewal of a note given for the debt of Smith, Lyon &Co., of which partnership the defendants Smith and Murphy were not members, the burthen of proving their assent to the making of the note by Lyon rested on the plaintiff. — Mauldin v. Br. Bank of Mobile, 2 Ala. 503. The assent may have been express, or it may be implied or inferred from circumstances. The mere silence, however, of Murphy, upon being informed of the existence of the note after it was made, was not contractual, had in it no element of estoppel, and of itself was not evidence that he had assented to the making of the note. — 2 Whart. Eq. § 1152.

2. Any instruction requested to be given a jury based entirely or partly on a state of facts of which there does not appear to have been evidence, is abstract, has a tendency to mislead, and is properly refused. — 1 Brick. Dig. 838, § 41. For this reason, the third instruction requested was properly refused; if it is conceded that it asserted a correct proposition. The bill of exceptions purports to set out all the evidence, and there is a want of any faet tending to show that Murphy ratified the unauthorized act of Lyon in making the note.

3. The fourth and fifth instructions were properly refused. It is quite an error to suppose that one who knowingly takes the negotiable paper of a partnership for the debt of one of the partners, is a bona fide purchaser or holder. On the contrary, he is a particeps doli, and cannot ■enforce the paper against the injured partners, whatever rights could be acquired by an innocent indorsee, taking the paper on a valuable consideration before maturity, in the usual course of trade. — Mauldin v. Br. Bank Mobile, 2 Ala. 512.

4. The memorandum of the note on the books of the partnership, could not have had any greater effect than to inform Murphy the note had been made, and his mere silence subsequently could not render him liable. — 2 Whart. Eq. § 1152.

5. There was no conflict in the evidence — no controversy about the fact that the consideration of the note, was not the debt of the partnership, but the individual debt of Lyon, as the surviving partner of the former firm of Smith, Lyon & Co. It was fully shown that the subsequent firm had not assumed or agreed to assume the debts of the former firm ; and there was a total want of evidence tending to show that Smith and Murphy had assented to the making of the note, or with knowledge of the facts had ratified Lyon’s unauthorized act in making it. In this, state of facts, on request of the defendants, the court could properly give a general charge that the verdict ought to be for the defendants. Such a charge can on request be given when there is no conflict in the evidence. — 1 Brick. Dig. 335, § 3. The seventh charge requested by the appellant was properly refused, and the general charge was properly given.

Affirmed.