Mitchell v. Ostrom — 2 Hill & Den. 520

Majority

p. 520

Mitchell vs. Ostrom and others.

Headnote

Where a plaintiff declares against several defendants upon a joint undertaking, he is bound to prove such an undertakings the trial, or he cannot recover.

One partner, after dissolution, cannot bind his former partners by giving a promissory note in the name of the firm.

In an action upon a promissory note signed by one of the defendants, thus—“ Late firm, M., Jl, E. Co.,”—it appearing that the firm was originally composed

of the defendants, but that the partnership was dissolved before the date of the note : Held, that the plaintiff could not recover; and this, though the defendant who signed the note was the only one who appeared and pleaded to the action.

Such a signature by a member of a former firm does not estop him from denying his joint liability with the others on the note.

Whether he will be thus estopped where there is an existing partnership at the time, and the note is signed'in the usual form of making partnership contracts, quere.

The parties to a written contract are chargeable with knowledge of its legal effect.

Had the defendant who signed the note in this case been sued alone, the action might have been sustained. Semble.

Assumpsit tried before Willard, 0. Judge, at the Fulton circuit, in May, 1841. The plaintiff declared against George G. Johnson, John A. Ehle and John Ostrom, Jr., survivors of Andrew Mitchell, deceased, “ who were partners carrying on trade and commerce under the name, style and firm of Mitchell, Johnson, Ehle & Go.” The defendant Ostrom, pleaded nonassumpsit. It did not appear whether the other defendants had, or had not, been served with process. On the trial, the plaintiff sought to recover on two promissory notes, one of which was dated January 21, 1834, and was signed thus—“ Late firm Mitchell, Johnson, Ehle & Co.,” and amounted, with interest, to $296,95. The plaintiff proved that the firm was originally composed of the persons mentioned as such in the declaration—that the partnership was dissolved before the date of the note—that Mitchell died in 1839, and that the signature to the note was in the hand-writing of the defendant Ostrom. The defendant Ostrom objected to the reading of the

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note in evidence, and, the objection being overruled, he excepted. Verdict for plaintiff for the amount of both notes. The defendant Ostrom now moved for a new trial on a bill of exceptions.

D. Wright, for the defendant.

D. Cady, for the plaintiff.

By the Court,

The plaintiff has declared as upon a joint undertaking by all the defendants, and he was bound to prove such a promise on the trial. (Shirreff v. Wilks, 1 East, 48; Gray v. Palmer, 1 Esp. R. 135; and see Robertson v. Smith, 18 John. 459 .) No joint liability was made out. After the dissolution, Ostrom had no authority to bind his former partners by giving.a promissory note in the name of the firm. (National Bank v. Norton, 1 Hill, 572 .) Ostrom may be liable when sued alone, but he has not undertaken jointly with the other defendant. Mitchell, Johnson & Ehle never made the note, either by themselves or by their lawful agent; and the case is the same as though their names did not appear upon the instrument.

But it is said that there is an estoppel in pais against Ostrom—that having put the firm name to the note, he is not at liberty to deny that all of the defendants are bound by it. That would, perhaps, be a dehateable question, even if there had been an existing partnership at the time, and the note had been subscribed in the usual form of making partnership contracts. (Sh irreff v. Wilks, 1 East, 48 ; Hawks v. Munger, 2 Hill, 200 .) But there was no existing partnership at the time the note was made, and Ostrom did not pretend that there was. On the contrary, by prefixing, the words “ late firm” to the former partnership name, he plainly declared that the partnership had been dissolved. He does not deny that fact now. But this will not answer the plaintiff’s purpose. He must show an admission by Ostrom that his late partners were bound by the note; but no such admission has been made.

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Assuming, as we must, that the parties understood the law, Ostium said, in effect, that his late partners were not bounds and the plaintiff took the note with the knowledge of that fact. Ostrom has not affirmed the existence of any fact which he now wrongfully attempts to controvert; and the plaintiff is not injured by being required to prove what he has averred in his declaration, viz: the joint liability of all the defendants. He has not acted upon any admission that all were bound; but on the contrary, he knew at the time that all were not liable. There is, consequently, no estoppel in the case.

New trial granted.