34 Mich. 443 (Mich. 1876), Moore v. Foote

Citation34 Mich. 443
Opinion JudgeCooley, Ch. J.
Party NameFranklin Moore, impleaded with others, v. Ellen L. Foote. [*]
AttorneyMeddaugh & Driggs, for plaintiff in error William Jennison, for defendant in error,
Case DateOctober 04, 1876
CourtSupreme Court of Michigan

Page 443

34 Mich. 443 (Mich. 1876)

Franklin Moore, impleaded with others,

v.

Ellen L. Foote. [*]

Supreme Court of Michigan

October 4, 1876

Submitted on Briefs June 21, 1876

Page 444

[Syllabus Material]

Page 445

Error to Superior Court of Detroit.

Judgment affirmed, with costs.

Meddaugh & Driggs, for plaintiff in error, argued that the firm due-bill in Foote's hands was at most but evidence that he had advanced to the partnership the amount thereof, and his right of recovery thereon would depend upon and be subject to an accounting between him and the firm; and his transfer of the due-bill to his wife, in payment of his antecedent indebtedness to her, would in legal effect operate only as an assignment to her of the firm indebtedness to him, and would give her no greater right as against his co-partners than he had; that in the transaction of giving Mrs. Foote the firm note in lieu of the due-bill and other notes, Foote represented all the parties to it, and was the agent of both the firm and his wife; that the law presumes him to have had knowledge of the facts that his firm was insolvent and that he was largely indebted to it, and his knowledge was under the circumstances her knowledge; that neither her rights nor her remedy therefor, as to so much of the note as represented the due-bill, was altered or affected by the giving of the note; that the essence of the transaction was nothing else than an attempt by Foote to pay his individual debt with the partnership obligation; and they cited: Pars. on Part., 202, notes c and d, 285-6, note r; Simrall v. O'Bannon, 7 B. Mon., 608; 1 Pars. on Bills and notes, 211; Wilson v. Forder, 20 Ohio St., 89, and cases cited.

William Jennison, for defendant in error, to the point that when one partner has made a firm note payable to himself for money loaned by him to the firm, the assignee of that note may sue and recover upon it, cited: Davis v. Brigg, 39 Me. 304; Thayer v. Buffum, 11 Metc. 398; Temple v. Leaver, 11 Cush. 314; and that even where such note was given for the individual debt of a partner, an endorsee without notice could recover against the firm: Chagvernes v. Edwards, 3 Pick. 5; Story on Part., § 133, p. 226-7;Edwards on Bills, p. 100 (Marg.); Pars. on Part., 208, 212; Haldeman v. Middleton, 28 Penn. 440; Munroe v. Cooper, 5 Pick. 412; 19 Pick. 102; that the chief clerk had authority to give the firm due-bill: Tillier v. Whitehead, 1 Dall 269; Gow. on Part., 55 and note; that the due bill, though non-negotiable, was transferable, and the assignee could sue in her own name: 2 Comp. L., § 5775; that the prior indebtedness of Foote to plaintiff made her a bona fide purchaser subject to equities, of which there were none here: Bostwick v. Dodge, 1 Doug. 413; Outhwite v. Porter, 13 Mich. 533; that it cannot be said that plaintiff took the due bill or the note with notice that it was a payment of the private debt of the firm to Foote, for the due-bill represented the debt of the firm to Foote, which he merely transferred to plaintiff, and the payment to her was in no sense a payment with the funds of the firm: Smith v. Lusher, 5 Cow. 688; that the transaction between Foote and the firm, when he received the firm due-bill for the New York draft, was evidently intended as a specific temporary loan, not a payment or a contribution to the general partnership affairs; that if Mrs. Foote had sued upon the note before the dissolution of the firm...

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