Chicago Trust & Savings Bank v. Kinnare , 1896 Ill. App. LEXIS 50 ( 1896 )

Mr. Justice Waterman

delivered the opinion oe the Court.

This action is brought upon a forged signature to a promissory note.

Goldthwaite, who signed the name, Ward, Goldthwaite & Co., to the note, was not, when he did so, a member of the firm, nor had he any authority to sign such name, nor did the firm in any way receive any benefit from his signing, or have notice thereof.

Goldthwaite had been a member of the firm, and after his retirement therefrom, the remaining members had undoubtedly conducted themselves, by continuing to do business without notice of dissolution, and by the old name, so that to persons not having notice of his retirement, or that Goldthwaite was acting for himself alone, Ward and Bemick would have been liable for what' Goldthwaite did in the firm name.

Did appellant in respect to the note in suit, have such notice ?

The note given to. appellant was a judgment note, to which Goldthwaite signed the firm name, and also his own, all the signatures being made by Goldthwaite in the presence of Tolman, the president of the bank; it was payable to the order of the makers, and by Goldthwaite indorsed as it was signed.

Appellant knew that, unless specially authorized, Gold"thwaite could not execute in the firm name a valid power of attorney to confess judgment; it also knew that if Goldthwaite was a member of the firm, he was bound by the firm signature without affixing his individual name.

We are not now called upon to say what we should have found had the case been tried before us, but whether the evidence is such that this court must set aside the finding of the Circuit Court that appellant had notice that Goldthwaite made the firm signature and obtained money thereon for his own private use; taking all the facts into consideration, we can not so say.

Eemick, in testifying to the conversation had with Tolman at Eemick & Ward’s store on February 26th or 27th, said:

“ The conversation was substantially this : He said thát he had §2,500 predicated on this paper (the four notes), and that §2,400 would make him even and wanted me to buy it for that. He wanted me to buy the whole four pieces of paper for §2,500. He said he had loaned upxvard of §2,500, and that Goldthwaite had put up that collateral note dated November 18th, and that he had bought some other notes; that Goldthwaite had left that paper expecting to get the- Goldfaite & Sons paper; that Tolman said he played sharp on him, and after he got the four notes he kept them.”

Ward, referring to the conversation with Tolman at the store—the conversation testified to by Eemick, said: -x- * * “ an(] Tolman said he wanted to get twenty-five hundred dollars on this sale, and that if he would give him that he would give up the notes, and there was four of them.”

These two (meaning the note in suit and the one sued on in Charles v. Eemick, mpra), were two of the four. “ The other two are in the hands of the firm of Goldfaite & Sons, of Marion, Indiana. I saw them the other day.”

Tolman denies this.

The court below saw and heard the witnesses; wre can not say that it was not warranted in finding, as we must presume it did, that appellant has received all that it loaned upon the faith of the forged signature of Ward, Goldthwaite & Co.

We do not regard the stipulation as an agreement that appellant did not have notice that Goldthwaite was using the firm name to obtain money for his private use.

The stipulation is merely that neither Tolman nor appellant consented or knew that he, Goldthwaite, wrongfully applied the money to his personal use.

If appellant had notice that Goldthwaite intended to apply the money to his personal use, although it may have believed that the firm had consented thereto, and that there would be no wrong in so doing, nevertheless it assumed the risk of there being such consent.

Appellant gave to Goldthwaite for the note a check payable to the order of Ward, Goldthwaite & Co., but as we understand, this check was upon appellant, and was by it paid.

The question in this regard turns upon whether appellant had notice that Goldthwaite was using the firm name for his personal ends. The previous dealing and all circumstances taken into consideration, we can not say that the Circuit Court erred in finding the existence of such notice.

The judgment of the Circuit Court is therefore affirmed.