Jones v. Booth , 10 Vt. 268 ( 1838 )

The opinion of the court was delivered by

Phelps, J.

With the weight of the evidence in this case we have no concern. The only question for our consideration is, whether the evidence relied on by the plaintiff had a legitimate tendency to sustain the issue on his part. If so, it should have gone to the jury to be weighed by them, and if not, the court below were right in passing upon it themselves. -

The plaintiff admits that the mere relation of partners did not, of itself, authorize Austin to bind the defendant, by this note. But he insists that one partner may authorize his fellow to bind him in such a case; and of this, there is no doubt. He insists further, that a subsequent recognition of the note by the co-partner, as a subsisting obligation upon him, is evidence of such authority; and of this, there is as little doubt.

That the evidence offered by the plaintiff, had a legitimate tendency to prove such an authority, seems to have been understood by the court below, when they admitted the testimony. That it had such a tendency, standing alone and independent of the explanation offered by the defendant, there can be no question. And- whether that explanation satisfactorily rebutted the presumption arising from the declarations of the defendant, was a question within the exclusive province of the jury. How the defendant came to take the assignment, securing this debt, at all, was proper for their consideration ; and whether the defendant’s promises to pay it were referable to its validity in the outset, or to the supposed trust, created by the assignment, is a mere question of fact for the jury to decide. In short, whether the jury would infer, from the evidence, an authority in Austin to bind his co-partner, at the time of making the note, was a question for the exercise of their judgment, and not a matter of law. Indeed, the conversation between the plaintiff and defendant, as testified to by Maddin, would in my judgment bind the defendant, unless the plaintiff was bound to understand him, as having reference solely to the pledge in his hands, and not to the authority of his partner to bind him in thé outset. If the plaintiff had reason to consider it as an admisssion, by the defendant, of his liability on the note, there are strong reasons why the defendant should be held to his promise. What the plaintiff understood, or had reason to understand, and what the defendant intended he should understand, should have been found by the jury.

We think the court below erred in passing upon the sufficiency of the evidence. They should have left it to the jury, with proper instructions, to determine whether Austin had the necessary authority to bind his partner, and whether the latter intended to admit, unequivocally, to the plaintiff, his liability, on the note.

For this reason, the judgment of the county court, is reversed, and the cause remanded to that court, for a new trial.