Lowry v. Tivy

Decision Date24 February 1903
Citation54 A. 521,69 N.J.L. 94
PartiesLOWRY v. TIVY.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Hannah Lowry against Peter Tivy and others. Judgment for defendants, and plaintiff brings error. Reversed.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Leon Abbett, for plaintiff in error.

William S. Stuhr, for defendant in error.

PITNEY, J. This action was brought to recover moneys alleged to have been loaned by the plaintiff to the firm of Tivy & Schmidt, composed of Peter Tivy and August J. Schmidt, as partners, and alleged to have been secured by two promissory notes made by Schmidt individually, payable to the order of the plaintiff, and indorsed with the firm name of Tivy & Schmidt, signed in the handwriting of Schmidt. Schmidt having deceased, the plaintiff joined as parties defendant the administrator of the deceased partner and Peter Tivy as surviving partner. The declaration contains the common money counts, and to it are annexed copies of the promissory notes, which are referred to in the declaration, and thereby made a part of it, as permitted by section 123 of the practice act (Gen. St. p. 2554). The pleader relied upon section 29 of the practice act (Gen. St. p. 2537), entitling the holder of a promissory note, instead of bringing separate actions against the parties separately liable, to include them in one action. No question is raised as to the applicability of that section in a case like the present, for notice of misjoinder was not given in the manner prescribed by section 38 of the practice act (Gen. St. p. 2538). Therefore the plaintiff was entitled to proceed to trial and recover judgment against either or both of the defendants, according as her proofs warranted. Patterson v. Loughridge, 42 N.J.Law, 21; Elliot v. Bodine, 59 N.J.Law 567, 36 Atl. 1038; Bank of Toronto v. Mfrs. & Merchants' Fire Assn, 63 N.J.Law, 5, 42 Atl. 761, at page 13, 63 N.J.Law and page 764, 42 Atl.

The defendants severed in their pleadings, but the several issues were brought on to trial together, without objection. The plaintiff proved the making and delivery of the promissory notes by Schmidt, and proved that the indorsements were in his handwriting, and that a partnership existed at that time between Schmidt and Tivy. The notes were thereupon admitted in evidence. They were made long before the enactment of the recent general act relating to negotiable instruments (Laws 1902, p. 583), and so the present case raises no question of the effect of section 17 of that act, which prescribes that, where the language of the instrument is ambiguous, certain rules of construction shall apply, and, among others, that, where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser. Therefore, since the notes in question were the individual notes of Schmidt, payable to the order of the plaintiff, and indorsed in the firm name of Tivy & Schmidt, the indorsement in and of itself alone does not import any contract on the part of the firm. But extrinsic evidence is admissible to show what was the contract of the parties. Chaddock v. Van Ness, 35 N.J.Law, 517, 10 Am....

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4 cases
  • Freeman v. Berberich
    • United States
    • Missouri Supreme Court
    • 20 Abril 1933
    ...by the statute (Sec. 1723, R.S. 1929) to testify as witness on behalf of plaintiff. Allen v. Boeke & Sons, 300 Mo. 601; Lowry v. Tivy, 69 N.J.L. 94. (5) Plaintiff was not an incompetent witness as between him and appellant except as to transactions which took place between him and the decea......
  • Freeman v. Berberich
    • United States
    • Missouri Supreme Court
    • 20 Abril 1933
    ...by the statute (Sec. 1723, R. S. 1929) to testify as witness on behalf of plaintiff. Allen v. Boeke & Sons, 300 Mo. 601; Lowry v. Tivy, 69 N. J. L. 94. (5) Plaintiff was an incompetent witness as between him and appellant except as to transactions which took place between him and the deceas......
  • Nesbitt v. Swallow
    • United States
    • Colorado Supreme Court
    • 7 Mayo 1917
    ... ... 196] that the plaintiff would be a competent witness, at ... least against him, and possibly for all purposes. In Lowry v ... Tivy, 69 N. J. Law, 94, 54 A. 521, where the question was ... raised under a statute similar to ours, it was held that in ... an action on ... ...
  • United N.J. R. & Canal Co. v. Gummere
    • United States
    • New Jersey Supreme Court
    • 24 Febrero 1903

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