Schwank v. Davis

• Decision Date: 13 December 1888
• Citation: 41 N.W. 141,25 Neb. 196
• Parties: SCHWANK v. DAVIS.
• Court: Nebraska Supreme Court

25 Neb. 196

41 N.W. 141

SCHWANK

v.DAVIS.

Supreme Court of Nebraska.

Dec. 13, 1888.

Syllabus by the Court.

Where a promissory note was executed in the firm name by one of the partners, and a chattel mortgage to secure said note was also executed in the firm name by the same partner, the presumption is that the instruments were executed on behalf of the firm.¹

Error to district court, Madison county; NORRIS, Judge.

Replevin by C. Schwank against George Davis, sheriff. Judgment in favor of defendant, and plaintiff brings error.Allen & Robinson, for plaintiff in error.

Robertson & Campbell and Brome, White & Mapes, for defendant in error.

MAXWELL, J.

This is an action in replevin, brought by the plaintiff against the defendant to recover certain goods upon which the defendant had a chattel mortgage. The defendant, in his answer, states his right to the goods as follows: “That as such sheriff, on or about the 3d day of July, 1886, he took the said goods and chattels mentioned in plaintiff's petition as the goods of August Wiegand and Bernard Strotman, comprising the firm of Wiegand and Strotman, by virtue of an execution issued by H. D. KELLY, county judge of Madison county, Neb., on the 1st day of July, 1886, which said execution was issued upon a judgment rendered in the county court of Madison county, Neb., on the 19th day of June, 1886, in favor of Fred Shelby and against August Wiegand and Bernard Strotman, comprising the firm of Wiegand and Strotman, and the said execution was directed to him, the defendant, as such sheriff, and commanded him to make the amount of the same and costs out of the goods and chattels of said August Wiegand and Bernard Strotman, being the members of the firm of Wiegand and Strotman, as aforesaid. That the defendant took said goods and chattels as aforesaid, upon said execution, and sold the same, as required by law, and returned the proceeds thereof into the county court of Madison county.” The plaintiff claims under a chattel mortgage executed in the firm name of Wiegand & Strotman, on the 13th day of May, 1886, to secure a note of $400 of that date, also executed in the firm name. The proof shows that both of these instruments were executed by one of the partners. The court, therefore, directed the jury to find a verdict for the defendant. This is now assigned for error. In giving this instruction, we think the court erred. The presumption of law is that a promissory note, signed in the name of the firm by one of the partners, is the note of the partnership. The question was before the supreme court of New York in Whitaker v. Brown, 16 Wend. 507, and it was held that a note given by one of several partners in the firm name is, of...