Morris & Co. v. Maddox , 97 Ga. 575 ( 1895 )

Lumpkin, Justice.

1. It is well known tbat every mercantile partnership needs cash in tbe conduct of its business. "Without money such a concern could not transact business at all, and it is perfectly obvious tbat tbe necessity of borrowing must frequently arise. It follows that a member of such a partnership has, generally, the right to contract, in the partnership name, for a loan of money. It is usual in such a case to give a promissory note, and. the partner conducting the transaction has the authority to sign the name of the firm to such note. Very often security is required; and in that case, it would be perfectly legitimate and proper for such partner to procure another to sign the note as surety. If the surety required an indemnity, the name of the partnership could, for the accomplishment of this purpose, be lawfully signed to the proper instrument by the partner who induced the surety to sign the note. These propositions seem clear and indisputable, and they lead to the conclusion that a member of a partnership has the power to exchange a promissory note of the partnership for the promissory note of another of like amount, the proceeds of which are intended for use in carrying on the partnership business. Each becomes an accommodation maker for the benefit of the other. The act of one is the consideration for the act of the other; and the net result, so far as the partnership is concerned, is that it obtains money for use in its business upon the paper of another person, and in return indemnifies that person against loss; or, what is equivalent to the same thing, extends to him an accommodation of the same kind it procured at his hands.

2. The misconduct of the plaintiffs’ counsel, as outlined in the second head-note, was wholly inexcusable. This is apparent without discussion.

3. This being a closely contested case upon the facts, a mere rebuke of the counsel by the judge, and an instruction to the jury to disregard counsel’s improper statements, was not, in this instance, a sufficient correction of the injury done to the defendant. The latter’s counsel pursued the course which this court, in Metropolitan Street Railroad Co. v. Johnson, 90 Ga. 501, decided was the proper one under such circumstances, viz: he promptly objected to the remarks made by the plaintiffs’ counsel, and moved that a mistrial be declared. See, also, Robinson v. Stevens, 93 Ga. 539, citing tbe Johnson case, supra, and again bolding that, under such circumstances, “tbe proper course was to move that tbe ease be withdrawn from tbe jury and a mistrial be declared; and if tbe court refused to grant this request, tbe refusal would be subject-matter for review by this court.” Tbe case in band affords an instance in wbicb tbe motion for a mistrial ought to have been granted.

4. It is unnecessary to deal specifically with other questions presented in tbe record. Except as above indicated, there was no- error requiring a new trial.

Judgment reversed.