Strauss v. Waldo, Barry & Co. , 25 Ga. 641 ( 1858 )

By the Court.

Lumpkin, J.

delivering the opinion.

On two notes given by David Strauss alone, the payees sue, and seek to charge Jacob Strauss as a partner. Jacob Strauss put in the plea of non est factum. It was demurred to, and ordered tobe stricken out by the Court, upon the authority of Collier and others vs. Cross and another, (20 Ga. Rep. 1,) and this case certainly sustains the Court in its decision.

I was not present when Collier and Cross was adjudicated. Of course, I shall bow to that decision, as to all others snade by this Court, as law.

The defendant, Jacob Strauss, further pleaded, that at the time these notes were given by David Strauss, and upon which he is sought to be made liable, he was not a partner of the firm of David Strauss. And this plea is verified. This plea also was stricken out upon demurrer, as not being sufficiently full.

We differ from the Circuit' Court upon this latter point. If Jacob Strauss was not a partner of David Strauss, at the time these notes were given, prima facie at least, David Strauss had not power to bind him, by giving a partnership note. If there was any agency, or any other special reason, why Jacob Strauss ought to be bound, that could be proven under a replication to this plea. The plea, we think, was sufficient to put the plaintiffs upon proof of the partnership.

It is strongly laid down in Story on Partnerships, that even without this plea, where the partner, as in this case, does not sign Co., he is deemed to have only contracted for his own private affairs, and does not bind his partners, unless the creditor shows by other pro of, that the individual thus signing, contracted on account of the partnership affairs. Story on Partnerships, sec. 106 and note2, and sec. 109 and note 2.

Perhaps the judiciary Act of 1799, requiring the defendant to deny the notes on oath, has made the plea put in, in this case, necessary. Still, it is undoubtedly full enough to require proof of the firm by the plaintiffs.

Judgment reversed.