Meyran v. Abel , 189 Pa. 215 ( 1899 )

Opinion by

Mb. Justice Fell,

The plaintiff’s statement sets out a complete cause of action, the making and delivery of partnership notes in renewal of prior notes; the indorsement of them by the plaintiff at the instance and request and for the benefit of the defendants, and their payment by the plaintiff after maturity and protest. By reference to the dates of the notes renewed the original debt is carried back as to both series of notes to a time when the firm was in existence and in possession of its assets, although it had ceased active operations. The making and delivery of the prior notes by one of the partners before the dissolution of the partnership, and of the last renewals by him after its dissolution, is in effect admitted by the affidavit. The grounds of defense then open were: (1) fraud on the part of the partner who made the notes, to which fraud the accommodation indorsor was a party; (2) want of authority in the partner to renew the notes after the dissolution of the partnership.

A defense is established on neither ground. As the notes were in form partnership notes, the assertion that they were the individual notes of Joseph Abel must be considered as meaning that they were fraudulently used for his individual purpose. It is not denied that the plaintiff indorsed the notes in good faith for the accommodation of the partnership; and a fraudulent use of them by one of the partners, without participation by the plaintiff in the fraud or notice to him of the intended use, will not defeat the light to recover.

The averment that the firm did not make the notes; that neither the original notes nor the renewals thereof were authorized by the firm, and that after the sale of the assets in 1897, no former partner had authority to make notes, when read in their connection in the affidavit, are assertions of legal inferences by the affiants, and not of facts. It appears by the' affidavit that the partnership was formed in 1882; that the business was managed by Joseph Abel and Charles O. Smith, the partners who are not defending; that active operations ceased in 1893, but that the assets were preserved until sold in 1897. After 1893 the partnership continued for the purpose at least of closing up its business, and during this period its liquidating partners had implied authority to make partnership notes. To act as liquidating partners required no express authority. If they so acted with the knowledge of their copartners their permission may be presumed. After dissolution a liquidating partner may give and renew notes to liquidate the partnership indebtedness: Fulton v. Bank, 92 Pa. 112.

On the vital points of the case the affidavit of defense is evasive and insufficient and it does not meet the plaintiff’s statement of claim.

The judgment is affirmed.