Benoist v. Powell

• Decision Date: 30 September 1841
• Citation: 7 Mo. 224
• Parties: BENOIST & HACKNEY v. POWELL & WILSON.
• Court: Missouri Supreme Court

7 Mo. 224

BENOIST & HACKNEY

v.POWELL & WILSON.

Supreme Court of Missouri.

September Term, 1841.

ERROR TO ST. LOUIS COUNTY COURT OF COMMON PLEAS.

DARBY, for Plaintiffs. The question is, as the plaintiffs made out their case, was the evidence offered by the defendants, sufficient to justify the court in giving a verdict and judgment for the defendants. The plaintiffs contend that it is not. Rev. Code, p. 105, §§ 6-7; Bailey on Bills, p. 50, § 6; Mason v. Rumsey, 1 Campbell's R. 384; Bailey on Bills, 52; Winship v. The Bank of the United States, 5 Peters' 529; Bailey on Bills, 58; Bank of Rochester v. Brown, 7 Wendell, 158; Johnson v. Thompson, 3 Mo. R. 355; Martin v. Hays, 5 Mo. R. 63; Williams v. Circuit Court of St. Louis County, 5 Mo. R. 248; Pratte v. Blakey, 5 Mo. R. 205.

GAMBLE & WALKER, for Defendants. 1st. That where one partner gives the notes of the firm, for his private debt, the other partner is not liable when the notes are issued without his knowledge or consent, and the person receiving them knows they are not for a partnership debt. Lansing v. Gaine & Ten Eyck, 2 Johns. R. 300; Livingston v. Roosevelt, 4 Johns. R. 278, 279: Mercein v. Andrus, 10 Wendell's R. 461; Lloyd v. Freshfield, 22 Eng. Com. Law R. 382; Green v. Deakin, 3 Eng. Com. Law R. 377; Spireff v. Wilks, 1 East's R. 48; Ridley v. Taylor, 13 East's R. 175; Chagounes v. Edwards, 3 Pick. R. 15; 3 Kent's Com. 42. 2nd. The fact that P. & J. Powell, and not Peter Powell & Co., indorsed the original note, is, in the absence of rebutting testimony, conclusive proof to show that the money was not obtained for the firm of P. Powell & Co. Livingston v. Hostie, 2 Caine's R. 246; Dobb v. Halsey, 16 Johns. R. 34; 3 Kent's Com. 43; Foote v. Sabin, 19 Johns. R. 154.

TOMPKINS, J.

Benoist and Hackney brought their action against Powell, Fontaine and Wilson, and judgment being given against them, they come into this court to reverse that judgment. The suit was brought on a promissory note made by Thomas L. Fontaine, payable to Peter Powell & Co, which company consisted of the defendants in this suit. The evidence showed that this promissory note was indorsed by Peter Powell & Co. and delivered to the plaintiffs, Benoist and Hackney. The indorsement was proved to be in the hand-writing of said Thomas L. Fontaine, the maker of said note, and one of the firm of Peter Powell & Co. A clerk in the house of Peter Powell & Co. testified that he was at the store when the notice of this note becoming due was given: that he received the notice, and handed it to said Fontaine, who put it into his pocket: that there were no funds in the house of Peter Powell & Co. to meet said note; that the proceeds of the note could not have been applied to the business of the firm without some “record” being made of it. The defendants introduced another witness, who stated that he was a clerk in the house of the plaintiffs, Benoist & Co., and that he was present when the note sued on was given “in lieu of, and to lift another note, given by said Fontaine, indorsed by Peter Powell & Co. The original transaction was in the fall of 1839, on which Fontaine gave to the plaintiffs a note signed by himself as maker, and by P. & J. Powell as indorsers. This note fell due, and was renewed several times by Fontaine giving a new note with P. & J. Powell as indorsers, and finally the indorsement was changed by a new note given by said Fontaine, and indorsed by Peter Powell & Co Witness did not know to what purpose the money originally obtained on the note was applied, nor did he know whether the plaintiffs knew that the money was obtained by Fontaine for his individual purpose, or to what purpose the same was applied; but that he supposed it was for Fontaine's individual use, as it was his individual note; and he said Fontaine personally negotiated the original loan and all said renewals: that he presumed the indorsement of Peter Powell & Co. was for security; that he did not know of any dealings in the way of loaning money and discounting notes between the plaintiffs and defendants on account of Peter Powell & Co. except the transaction above stated by the witness.”

The bill of exceptions having detailed, first, the evidence of Joseph V. Garnier, next of Waters, a clerk in the house of Peter Powell & Co., and thirdly, that of the last...