Leonard v. Wildes , 36 Me. 265 ( 1853 )

Shepley, C. J. —

The case is presented on exceptions and on report of the testimony. According to the testimony of Dinsmore, a member of the firm, to which the note ’was made payable, the defendant indorsed his name on the back of the note, within four or five days after it was made by Kelley, in accordance with an engagement to do so, before it was made, and before the note had been negotiated by the payees; who could not be required to indorse it, to avail themselves of his contract, and as he could not be liable to them as an indorser, he must be regarded as a maker. Irish v. Cutler, 31 Maine, 536.

Dinsmore was properly admitted as a witness for the plaintiff. His claim to have his partners account for the note could not be affected by the result of this suit.

A compliance with the position of the defendant’s counsel, with respect to the effect of the names as found upon the back of the note, would have required the jury to disregard Dinsmore’s testimony, stating when and how the defendant’s name was written upon it; and the request founded upon that position was properly refused, and the instructions given were correct.

The first and second enumerated requests for instructions were properly refused.

If the defendant upon the testimony was to be regarded as a maker and not as an indorser, the note would be evidence to support the count for money had and received, and its allegations were sufficiently formal.

The third request assumes, that there had been a dissolution of the firm. . If given, it might have withdrawn from the jury a consideration of the testimony introduced to prove it. The fourth was also objectionable, as assuming that the note was indorsed, “ for a purpose foreign to the business of the firm.”. The instructions given in connection with these requests, appear to have been appropriate and essential to a correct presentation of the case, for consideration by the jury.

The fifth and sixth requests were properly refused, for reasons already stated.

When the only member of a firm entitled to complain, that the note had been improperly negotiated, or that it had been negotiated for a purpose not within the scope of the partnership, had been examined as witness in the case, without making any objection to its negotiation, the jury would be authorized to infer, that it had been done with his consent, or that he had subsequently approved of it.

The rule respecting the mode of casting interest, stated in the case of Dean v. Williams, 17 Mass. 417, has been received here, whether the payments were or were not voluntarily made. Exceptions and motion overruled.

Tenney, Appleton and Cutting, J. J., concurred.