Howard v. B. F. Beckley & Co. ( 1873 )

Opinion by

Judge Pryor:

The answer in this case is a special plea of non est factum and from the appellant’s own statements - contained in this pleading makes his firm, of which he is a member, responsible for the debt. Conceding that appellees knew of this private arrangement between the appellant and his co-partners, by which the checks and orders and obligations of the firm were to be drawn up by the bookkeeper, and the firm name signed by H. C. Howard, still where one of the members of the firm accepted this paper the holder had the right to presume that this private arrangement no- longer continued. Nor is 'there any allegation that these appellees had notice of this agreement. That they took the newspaper in which this arrangement between the parties was published is not a sufficient notice in such a case as this, nor is the statement that the plaintiffs, or some of them, admitted they had notice equivalent to an allegation of notice. The plea of non est factum is so explained by a statement of the evidence in the pleading offered in support of it as to show that the writing is the act and deed of the parties, and the allegation of notice is also contradicted by the evidence recited in the pleading in support of it. This evidence shows a want of notice, the judgment is affirmed.