Potter v. Dillon

• Decision Date: 30 September 1841
• Citation: 7 Mo. 228
• Parties: POTTER v. DILLON.
• Court: Missouri Supreme Court

7 Mo. 228

POTTER

v.DILLON.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM ST. LOUIS COUNTY COURT OF COMMON PLEAS.

GAMBLE & WALKER, for Appellant. 1. The law is settled that where one partner signs the name of the firm, as makers, indorsers, or acceptors of a note or bill, without the knowledge or assent of the other partner, to discharge his individual debt, or for purposes not connected with the partnership business, and the payee or person receiving such note or bill, knows the circumstances under which it is given, the other partner is not liable. Foote v. Sabin, 19 Johns. R. 154; Dobb v. Halsey, 16 Johns. R. 38; Lansing v. Gaines, 2 Johns. R. 300; Livingston v. Roosevelt, 4 Johns. R. 278; Llovd v. Freshfield, 22 Eng. Com. Law R. 382; 3 Kent's Com. 42; New York Ins. Co. v. Bennett, 5 Cowen, 574; Green v. Caldwell, ibid. 489. 2nd. One partner cannot bind the firm by using the name of the firm for his own private debt, without the knowledge or assent of his co-partners. Livingston v. Hostie and others, 2 Caine's R. 246; 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; Walden v. Sherburn, 15 Johns. R. 409; Whitaker v. Brown, 11 Wend. 75. 3rd. Nor can one partner bind his co-partner by using the name of the firm for his own private debt, when the creditor, taking the note or bill, knew that it was given for his individual debt, or for purposes not connected with the partnership, even where the other partner knew at the time of the name of the firm being used for such purpose. Mercein v. Andrus, 3 Wendell, 461; Foote v. Sabin, 19 Johns. R. 154. 4th. And the burden of proof in such cases is on the creditor to show that such other partner authorized or assented to the use of the name of the firm by one partner for his individual debt. Chazournes v. Edwards and Frost, 3 Pick. R. 5; Foote v. Sabin, 19 John R. 154; 3 Kent's Com. 43; Lovesty v. Burr, 1 Wend. 529; Schemerhorn v. Schemerhorn, ibid. 119.

HOLMES, for Defendant. The court will not set aside the verdict of a jury unless it appear to have been manifestly against evidence or the weight of evidence, unless palpable injustice has been done, and the cause be of sufficient value. Graham on New Trials, 362, 368; 3 Mo. R. 464, 467; 4 Mo. R. 295, 301; Steph. on P. C. 96. Verdict must be decidedly against the weight of evidence, 12, Wend. 27; 11 Wend. 143; 2 Cowen, 479; 9 Johns. R. 36.

TOMPKINS, J.

Potter brought this suit against Dillon before a justice of the peace. The matter being submitted to the justice, he found a verdict and gave a judgment for the plaintiff. The defendant, Dillon, then appealed to the court of common pleas. In this court the evidence was detailed to a jury, and a verdict being found by them for the plaintiff, the court gave a judgment accordingly. The suit is brought on a bill of exchange drawn by one Charles F. Downing on Reilly and Dillon, in favor of the plaintiff, Potter. This bill was accepted in writing by Reilly and Dillon. The acceptance was in the hand-writing of Reilly; at the time of the acceptance Reilly was a partner of Dillon in business. Evidence was given by the defendant to prove that nothing was found on the books of Reilly and Dillon to show that there had ever been any dealings between the plaintiff and the firm of Reilly and Dillon; but that previously to the partnership between them there had been some business transactions between the plaintiff and Reilly, which were not known to be settled. That the drawer had been, and was at the time the bill was drawn, a clerk of Reilly and Dillon. A letter from the plaintiff to Dillon was also read in evidence, in which Potter states that he holds an order drawn by Charles F. Downing for one hundred dollars, and accepted by Reilly and Dillon, &c. He says something is due, he supposes about fifty dollars. The court...