The Bank of Montreal v. Page
| Citation | 1880 WL 14072,98 Ill. 109 |
| Parties | THE BANK OF MONTREALv.WILLIAM R. PAGE. |
| Decision Date | 31 March 1881 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.
The Bank of Montreal brought assumpsit, in the circuit court of Cook county, against Gregg, Swift, Page, Bowen, Redfield, Talcott and Walker, as acceptors, under the name of “E. F. Knight, lessee,” of two drafts that were discounted by said bank, which drafts, with their indorsements, are as follows:
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¦“No. 3766.¦REDFIELD, BOWEN & CO., ¦
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¦ ¦Iron Merchants and Manufacturers, ¦
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¦ ¦Sales-rooms, 112, 114 and 116 Lake Street.¦
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¦$1446.67. ¦CHICAGO, Dec. 20, 1875. ¦
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On April 20th, 1876, pay to the order of ourselves, fourteen hundred and forty-six 67/100 dollars, with exchange, with interest at the rate of ten per cent per annum after maturity.
REDFIELD, BOWEN & WALWORTH CO.
To Mr. E. F. KNIGHT, Lessee,
Room 2, 175 LaSalle St., Chicago.
(Endorsed.) Redfield, Bowen & Walworth Co., F. A. Bowen, Treasurer.
On May 20th, 1876, pay to the order of ourselves, twenty-six hundred and thirty-eight 20/100 dollars, with exchange, with interest at the rate of ten per cent per annum after maturity.
REDFIELD, BOWEN & WALWORTH CO.
To Mr. E. F. KNIGHT, Lessee,
Room 8, 175 LaSalle St., Chicago. (Endorsed.) Redfield, Bowen and Walworth Co., F. A. Bowen, Treasurer.
(Written across the face.) Accepted payable at ________ E. F. KNIGHT, Lessee.”
Gregg and Swift were not served with process, and did not enter their appearance. The other defendants were served with process, and Page, Talcott and Walker pleaded, first, the general issue, and, secondly, denying the execution of the acceptances, and that they were partners with each other, under oath. Issues were joined upon these pleas, and, the cause coming on for trial, the same were submitted to a jury, who returned a verdict thereon in favor of the defendants. Motion for new trial was made and overruled, and judgment was, thereupon, rendered on the verdict. From that judgment an appeal was prosecuted to the Appellate Court for the First District, and the judgment of the circuit court was, by the judgment of that court, affirmed. The present record brings the last named judgment to this court for review.
The Bank of Montreal, the appellant, contends that the appellees, Page, Talcott and Walker, together with their codefendants, Bowen, Redfield, Gregg and Swift, in May, 1875, associated themselves together as partners, to carry on, for one year, certain works for the manufacture of bricks, which works belonged to a company styled the “Excelsior Pressed Brick Company,” and also to erect a kiln and burn bricks therein, under a certain patent belonging to another company styled the “Ceramic Gas Kiln Company;” that, pursuant to this purpose, one E. F. Knight was employed by the copartnership as general manager, and to him was then executed a lease of the works of the “Excelsior Pressed Brick Company,” and the business was entered upon and carried on in the name of “E. F. Knight, lessee;” that in November, 1875, a meeting of the partners was held, at which the defendant Bowen was appointed to take charge of the property and accounts of the partners, then held by E. F. Knight, for the purpose of winding up the partnership business, with full power to act in the premises as attorney and agent for the other partners; that Bowen, pursuant to this appointment, proceeded, with the assistance of Knight, (who remained with him thus employed until after January 20, 1876), to sell the brick on hand and to break up and dispose of the iron work of the kilns, and get in the outstanding indebtedness of the partnership; that an indebtedness was incurred to the “Bowen, Redfield and Walworth Company,” by the partnership, for material, work, etc., in constructing a kiln in which to burn the bricks by the process of the patent of the “Ceramic Gas Kiln Company,” for which indebtedness drafts and notes were executed in August and September, 1875, and that the drafts, upon which this suit is brought, were accepted by Knight, by the direction and approval of Bowen, as renewals of those drafts and notes.
The appellees, on the other hand, deny that they were partners with each other or with their other co-defendants. They contend that they simply agreed to loan E. F. Knight $2500 each to enable him to lease and carry on the works of the ““Excelsior Pressed Brick Company;” that they, together with the defendant Gregg, were stockholders and bondholders of the “Excelsior Pressed Brick Company,” of which Knight had been superintendent, and the financial condition of which was bad; that Gregg and the defendants Redfield, Bowen and Swift, were, at the same time, stockholders and officers of the “Ceramic Gas Kiln Company,” which company was the owner of what was considered a valuable patent for burning brick, and they were desirous to erect one of the kilns at some brick works in order to practically demonstrate the advantage of their patent; that Knight made a proposition to lease the works of the “Excelsior Pressed Brick Company,” representing that if he could borrow sufficient money to pay off pressing liens, put the works in good shape, and have a small working capital, he could make brick enough to pay the coupons that had matured and were maturing on the mortgage bonds of the “Excelsior Pressed Brick Company,” repay the moneys loaned him, and, besides, make a comfortable living for himself; that, thereupon, they,--that is, the appellees,--after considering the proposition, each agreed to loan him $2500 for these purposes; that those engaged in the Ceramic Gas Kiln Company,--that is, the defendants Bowen, Redfield, Gregg and Swift, each agreed to loan a like sum for the purpose of having an opportunity to exhibit the efficacy of their patent kiln, which they proposed to erect, in burning bricks; that these loans were separate, individual loans, forming a separate liability of Knight, having no relation the one to the other; that Knight made a failure of the business, and, not having paid anything back to those who had advanced him the money, he offered to turn over what assets he had on hand, which proposition was accepted, and Bowen was appointed as trustee to receive these assets, sell them and pay each of those who had so loaned money to Knight, pro rata, as far as he could realize. It is denied by them that Knight was paid any salary, or that he was ever authorized to draw drafts, even if it be conceded that the defendants were partners, and they claimed that the materials that entered into the construction of the furnace were furnished upon the credit of the “Ceramic Gas Kiln” by the “Redfield, Bowen and Walworth Co.,” and are properly chargeable only against that company.
It is further claimed, that even if Knight ever had authority to make acceptances for the defendants, that authority was revoked by the meeting of the defendants in November, 1875, at which the defendant Bowen was appointed to take charge of the property and accounts of the defendants, then held by Knight, for the purpose of winding up the business, and the partnership, if any theretofore existed, was dissolved, and hence, subsequent to that time, Bowen had no authority to make acceptances, either by his own act or through Knight, which would be binding upon the defendants.
Mr. MELVILLE W. FULLER, for the appellant:
If the name of a principal is signed by an agent in the presence of the principal, and by his direction, this will be sufficient to bind the principal, though there be nothing on the face of the note to show the agency. Morse v. Green, 13 N. H. 32; First National Bank v. Gay, 63 Mo. 33; Bingham v. Peters, 1 Gray, 139; Woodbury v. Moulton, 47 N. H. 11.
Clearly, this must be so as to an acceptance in Illinois, in which State it is well settled that a parol promise to accept an existing, or even a non-existing bill, is binding. Jones v. Council Bluffs Bank, 34 Ill. 319; Mason v. Dousay, 35 Id. 434; Nelson v. First Nat. Bank, 48 Id. 36; Scudder v. Union Nat. Bank, 1 Otto, 406; Mason v. Rumsey, 1 Campb. 384.
If there is a partnership, the members of which are known to a party who discounts the partnership paper after a dissolution of which he is ignorant, the paper is binding on all of the partners, irrespective of the question whether some of them held themselves out as partners or not. Parsons on Partnership (2d ed.), 431, 416.
Where negotiable paper is given for a transaction outside of the scope of a partnership, it will bind, if the proceeds are received and held by the firm. Richardson v. French, 4 Metc. 577; Jaques v. Marquand, 6 Cow. 497; Whittaker v. Brown, 11 Wend. 75; Clay v. Cottrell, 18 Pa. 408; Thickrusse v Bromilow, 2 Cromp. & J. 425.
It is settled law in this country that it matters not that the defendants meant not to be partners at all, and were not partners inter...
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