Fourth National Bank of St. Louis v. Altheimer

• Decision Date: 28 February 1887
• Parties: Fourth National Bank of St. Louis v. Altheimer, Appellant
• Court: Missouri Supreme Court

3 S.W. 858

91 Mo. 190

Fourth National Bank of St. Louis v. Altheimer, Appellant

Supreme Court of Missouri

February 28, 1887

October, 1886

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Affirmed.

Broadhead & Haeussler for appellant.

(1) Notice of the protest and non-payment of the note in question was not given to this defendant. (2) The court erred in giving plaintiff's third instruction. Participation in the profits of a co-partnership firm does not necessarily constitute a person a partner therein. Wiggins v Graham, 51 Mo. 18; Campbell v. Dent, 54 Mo. 325; Phillips v. Samuel, 76 Mo. 657; Gill v. Feriss, 82 Mo. 156, 167. (3) The court erred in refusing defendant's instructions, one, two, three, four, and six.

G. A. Finkelnburg for respondent.

(1) The third instruction given for plaintiff was a correct statement of legal principles as applied to the facts of this case. Grace v. Smith, 2 Wm. Black. 998; Waugh v. Carver, 2 H. Black. 235; Ex parte Hamper, 17 Ves. 404; Ex parte Rowlandson, 1 Rose, 91; Hesketh v. Blanchard, 4 East, 144; Heyhoe v. Burge, 9 C. B. 431; Manhattan Brass Co. v. Sears, 45 N.Y. 797; Leggett v. Hyde, 58 N.Y. 272, 278; Purviance v. McClintie, 6 S. & R. 259; Brown v. Cook, 3 N.H. 64; Miller v. Hughes, 1 A. K. Marsh. 184; Scott v. Colmesnil, 7 J. J. Marsh. 416; Taylor v. Ferme, 3 Harr. & Johns. 505; Wood v. Valette, 7 Ohio St. 172; Buckner v. Lee, 8 Geo. 285. (2) Assuming that a partnership existed, either in fact or as to third persons, the notice of protest was sufficient to bind the defendant. Story on Notes, sec. 308; Bouldin v. Page, 24 Mo. 594. So also after dissolution. 2 Daniels Neg. Inst., sec. 999; 1 Parsons B. & N. 502; Fourth National Bank v. Heuschen, 52 Mo. 207, 210. (3) The evidence conclusively shows that the verdict was for the right party, and no error having occurred materially affecting the merits of the action, this court will not reverse for a new trial. R. S., sec. 3775; Tate v. Railroad, 64 Mo. 149; Nelson v. Foster, 66 Mo. 281; Noble v. Blount, 77 Mo. 235; Bradford v. Floyd, 80 Mo. 207; Methudy v. Ross, 81 Mo. 481; Otto v. Bent, 48 Mo. 23; Hedecker v. Granzhorn, 50 Mo. 154; Kaskings v. Railroad, 58 Mo. 302; Presbit v. Martin, 59 Mo. 325; Noffsinger v. Bailey, 72 Mo. 216; State v. Hopper, 71 Mo. 425.

OPINION

Norton, C. J.

The petition in this case alleges that Gerson L. and Solomon B. Altheimer were copartners, under the firm name of G. L. & S. B. Altheimer, and that S. B. Altheimer and defendant, Gustavus Altheimer, were partners under the name of Altheimer & Company; that G. L. & S. B. Altheimer, on the thirteenth of August, 1879, made their promissory note to the order of Altheimer & Company, in which they promised to pay, eighty days after date, the sum of $ 2,750; that Altheimer & Company transferred, by endorsement, said note to plaintiff for value; that said note was not paid at maturity, but was protested, due notice of which was given.

Defendant, Gustavus Altheimer, filed his separate answer, in which he denies that he endorsed said note, and also denied that he was a member of the firm of Altheimer & Company at the time of the alleged endorsement and negotiation of the note to plaintiff. On the trial, judgment was rendered for the plaintiff, from which defendant, Gustavus Altheimer, has appealed, and assigns for error the action of the court in giving and refusing instructions. The instructions given for the plaintiff, and excepted to, are as follows:

"2. If the jury believe, from the evidence, that, upon the fourth day of November, 1879, the plaintiff caused the note sued on to be presented at the Fourth National Bank, and payment of the same to be there demanded, and that such payment was not made, and that, thereupon, on the fifth day of November, a written notice of such presentment, demand, and non-payment, was left, either at the place of business of Altheimer & Company, or left at the place of residence of a member of said firm of Altheimer & Company, with a person in charge thereof, then the jury are instructed that said firm had notice of such demand, and non-payment of said note, and no presentment to either G. L. or S. B. Altheimer, in person, was necessary."

"3. The jury are instructed, that if they believe, from the evidence, that Gustavus Altheimer was interested, or represented himself to plaintiff to be interested, in the profits of the sale of damaged goods sold at the 'fire store,' at or about the time of the making and negotiation to plaintiff of the note sued on, then they must find that he was a partner in the firm of Altheimer & Company at that time."

In the first instruction given for plaintiff, the right to recover as against appellant was predicated on the fact that he was, at the time the note was indorsed by Altheimer & Company, a member of said firm; that the note was indorsed to plaintiff before maturity for value; that at maturity it was protested for non-payment; that notice of such protest, as prescribed in the second instruction, was given to Altheimer & Company.

The second instruction is objected to on the ground that the notice was not left at the place of business of Altheimer & Company. Conceding that the evidence tended to show, and did show, this, the instruction cannot be condemned on that ground, inasmuch as the certificate of the notary stated that he not only left the notice at the place of business of Altheimer & Company, but, also, that it was left at the place of residence of a member of the firm. We understand it to be settled that when, as in this case, it is sought to charge a partnership as indorsers of a note subsequently dishonored, the requirements of the law, as to notice of its dishonor, are fulfilled when such notice is left either at the place of business of such firm, with some one in charge, or at the domicile, or residence, of one of the partners. Notice given in either one of these ways is sufficient to charge the members of the firm as indorsers. Story on Prom. Notes, sec. 312. In the case of Bouldin v Page, 24 Mo. 594, it is held that notice of the dishonor of a bill given one member of a partnership, is notice to all; and, in the case of Fourth National Bank v. Heuschen, 52 Mo. 207, it is held that a partnership, though dissolved, must be treated as still in existence so far as the question of demand, protest, and notice, is concerned, and the acts of one partner, in such cases, must be considered as...