Albietz v. Mellon

• Decision Date: 28 January 1861
• Citation: 37 Pa. 367
• Parties: Albietz <I>versus</I> Mellon.
• Court: Pennsylvania Supreme Court

37 Pa. 367

Albietz versus Mellon.

Supreme Court of Pennsylvania.

January 28, 1861.

ERROR to the District Court of Allegheny county.

Stowe and Mueller, with whom was P. C. Shannon, for plaintiff, contended that the evidence presented a case of fraud on Albietz by Bobe, and that the note was not binding on the firm even in the hands of subsequent endorsee, unless he proved himself an endorsee for value: 5 Pick. 412; 3 Pick. 5; 4 Johns. 25; 4 Howard 404; 2 B. & Ald. 291; Brown v. Street, 6 W. & S. 222; Holm v. Karpser, 5 Binn. 469; Collyer on Part., § 541; Hutchinson v. Boggs & Kirk, 4 Casey 294; Gray v. Kentucky Bank, 5 Casey 367; Snyder v. Riley, 6 Barr 169; 8 Wendell 426; Phil. Rep. 50.

R. Biddle Roberts, for defendant in error.—Under the evidence in this case, even the payees of this note might have recovered against Albietz. Notwithstanding dissolution, Bobe was the liquidating partner, and continued the business for winding it up: Robinson v. Taylor, 4 Barr 242; Davis v. Desauque, 5 Wh. 530.

There was no fraud on the firm in Bobe's execution of the contract with Reis & Berger under seal: Gram v. Seaton, 1 Hall Rep. 262; Smith v. Kerr, 3 Conn. 144; Fagley v. Bellows, 5 Harris 67; Johns v. Balten, 6 Casey 84. A plaintiff is not required to prove himself the bonâ fide holder of negotiable paper, unless where he has notice previously that he will be required to show the consideration given for the note: Beltzhoover v. Blackstock, 3 Watts 20; Holmes v. Kaspar, 5 Binn. 476; Albright v. Strimpler, 7 Barr 475; Whitaker v. Edmonds, 1 Mood. & Rob. 366. Mere absence or failure of consideration between the original parties is inoperative to put the plaintiff on such proof: Knight v. Pugh, 4 W. & S. 445; Brown v. Street, 6 W. & S. 221; Bramah v. Roberts, 1 Bingh. N. C. 469; Jacob v. Hungate, 1 M. & R. 445.

As to the notice of dissolution, he cited Collyer on Part. § 530, 531, 532; Wilkinson v. Bank of Pennsylvania, 4 Wh. 432; Heberton v. Jefferson, 10 Barr 24; Brown v. Clarke, 2 Harris 476.

The opinion of the court was delivered, January 28th 1861, by LOWRIE, C. J.

Two defendants are sued by the endorsee of a promissory note as partners and joint makers of it, and one of them submits, and the other takes defence, on the ground that the note had been issued by the other without authority and after the dissolution of the copartnership. The evidence of this defence having been given, the learned judge instructed the jury that there was no evidence that the plaintiff below had any notice of the dissolution, and none to weaken the presumption that he was a bonâ fide holder for value, and that therefore the defence failed. This is the chief matter assigned for error, and it requires us to refer to the evidence; for we must judge of the charge by the evidence given before the...