31 Mich. 373 (Mich. 1875), Carrier v. Cameron

Citation:31 Mich. 373
Opinion Judge:Graves, Ch. J.:
Party Name:John Carrier and others v. Wesley M. Cameron. [1]
Attorney:Marston, Hatch & Cooley, for plaintiffs in error. Holmes, Haynes & Stoddard, for defendant in error.
Judge Panel:Graves, Ch. J. Campbell, and Cooley, JJ., concurred. Christiancy, J., did not sit in this case.
Case Date:February 26, 1875
Court:Supreme Court of Michigan
 
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Page 373

31 Mich. 373 (Mich. 1875)

John Carrier and others

v.

Wesley M. Cameron. 1

Supreme Court of Michigan

February 26, 1875

Heard January 27, 1875

Error to Bay Circuit.

Judgment reversed, with costs, and a new trial ordered.

Marston, Hatch & Cooley, for plaintiffs in error.

Holmes, Haynes & Stoddard, for defendant in error.

Graves, Ch. J. Campbell, and Cooley, JJ., concurred. Christiancy, J., did not sit in this case.

OPINION

Page 374

Graves, Ch. J.:

Cameron sued the plaintiffs in error to recover against them on two notes of the following tenor:

"$ 2,358.91. Cincinnati, June 9th, 1873.

Forty days after date, we promise to pay to the order of W. W. Corbit, twenty-three hundred and fifty-eight dollars and ninety-one cents, at Franklin Bank, Cincinnati, O. Value received.

John Carrier & Co."

"$ 2,404.59. Cincinnati, June 9th, 1873.

Sixty days after date, we promise to pay to the order of W. W. Corbit, twenty-four hundred and four dollars and fifty-nine cents, at Franklin Bank, Cincinnati, O. Value received.

John Carrier & Co."

Each note was endorsed "W. W. Corbit."

The declaration counted specially on each note, and likewise contained the general counts with copies of the notes attached. Each special count averred that the plaintiffs in error were "copartners, doing business under the style and firm name of John Carrier & Co., at Cincinnati, in the state of Ohio," but the nature and scope of the partnership was not set up, nor was it distinctly and expressly averred that the giving of promissory notes was within the stipulated or implied competency of the firm.

Page 375

The plaintiffs in error pleaded the general issue, and filed and served an affidavit of John Carrier, to preclude its being taken as admitted that the notes were firm transactions, issued on the authority of the copartnership, and obligatory on any body besides himself.

On the trial before a jury, the described notes being produced by the plaintiff below, the plaintiffs in error, by their counsel, admitted that the notes were signed by John Carrier, one of their number, and that the firm was at the time composed of said Carrier and the persons sued with him; but in connection with this admission, they denied that Carrier had any authority whatever to sign either note for the firm.

The plaintiff below thereupon took the stand as a witness in his own behalf, and testified that he owned the notes; that the endorsement on the back was made by Corbit, the payee; that he, witness, saw Carrier sign the firm name as makers to each note, and that Corbit on the same day endorsed the instruments to witness. Evidence was then given of the amount the notes called for, and they were submitted in evidence. The plaintiff below then rested his case, and the foregoing constituted his entire showing...

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