Reed v. Bacon , 175 Mass. 407 ( 1900 )

Loring, J.

The defendants’ exceptions must be overruled.

I. There was evidence warranting a finding for the plaintiff; there was evidence that the note sued on was given in renewal of a note delivered to carry out a contract whereby the plaintiff agreed to lend to the firm of Lincoln, Bacon, and Company, and that firm agreed to borrow of the plaintiff, $5,000. A note signed by Bacon, one member of the firm, indorsed by the firm to carry out that contract, is given, in the course of the firm’s business, and binds all partners. Wait v. Thayer, 118 Mass. 473, 478. Cooper v. McClurkan, 22 Penn. St. 80, 84. Langan v. Hewett, 13 Sm. & M. 122. Steuben County Bank v. Alberger, 101 N. Y. 202. Dan. Neg. Instr. § 365.

The fact that the note was indorsed by the firm and was delivered in carrying out an agreement by which the firm agreed to borrow the money therein agreed to be paid, distinguishes this case from Atlas National Bank v. Savery, 127 Mass. 75; and Smith v. Weston, 159 N. Y. 194, in which it is held that a firm is not, at least prima facie, liable on such note when given for a loan made to one partner.

The bill of exceptions does not show' to whom the cheque was payable by which the $5,000 borrowed by the firm was paid; if the cheque was made payable to Bacon personally, that would have been evidence tending to control the evidence that it was paid under a contract whereby the firm agreed to borrow the money. There was evidence that the defendant firm had been in the habit of borrowing money to carry on the firm business, and that that part of the firm business had been conducted by Bacon, the partner who made this agreement, signed this note as maker, and indorsed the firm name on the back. It appears that the $5,000 never reached the firm, but was intercepted on its way and put into Bacon’s private account ; but it is not shown that the plaintiff knew this ; if she was ignorant of it, it could not affect her rights; her rights could not be affected by Bacon’s act in wrongfully putting into his own bank account the firm’s money which he had borrowed in its behalf. The fourteenth ruling requested was properly refused.

2. There is nothing in the first and second rulings requested. The plaintiff declared on the renewal note and proved it,1 and how proof of the original note made as a step in proving the character of the renewal note could be thought to lay the foundation of a claim of variance under a declaration counting on the renewal note is not apparent to us.

3. The third request was properly denied. There was evidence- that Thompson acted as the go-between in making the contract; it is not material whether he was anybody’s agent, and, if so, whose.

4. The fourth request was properly denied. There was evidence that the name of Lincoln, Bacon, and Company was on the note when it was delivered to the plaintiff, and an indorsement made by the plaintiff as payee when she put the note in the bank for collection did not make her the first indorser.

5. The fifth request was properly denied. There was evidence that statements were made by Lincoln, Bacon, and Company to Thompson, to be transmitted, and which were transmitted, by him to the plaintiff, which statements proved the plaintiff’s case.

6. The sixth request was properly refused. The holder of a note bearing the valid indorsement of a partnership, made by one partner, may prove it against both estates in insolvency.

7. The eighth, ninth, tenth, eleventh, twelfth, and thirteenth requests were given, so far as the burden of proof goes; so far as they asked for a ruling that the position of the names of the firm and of the individual partner on the note sued on was finally decisive against the plaintiff’s right to recover from the firm they were wrong, for the reasons given in disposing of the fourteenth ruling requested.

8. That the testimony of Thompson and of the plaintiff were admissible is too plain to require discussion ; the other points covered by the motions made at the conclusion of the evidence have already been disposed of. Exceptions overruled.