Early v. Reed — 6 Hill & Den. 12

Majority

p. 12

Early vs. Reed & Reed, impleaded &c.

Headnote

Though it appeared that each of two partners had repeatedly, with the knowledge and assent of the other, endorsed accommodation notes in the firm name; held, not sufficient evidence that either of them was authorized to sign the firm name to a note as maker and surety.

Assumpsit, tried at the Rensselaer circuit, in May, 1843, before Cushman, C. Judge. The action was brought to recover on a promissory note, purporting to be signed by Hull as principal, and the firm of L. V. & J. B. Reed as surety. Hull suffered a default to be entered against him, and the Reeds defended. On the trial it was admitted that Leonard V. Reed and John B. Reed composed the firm of L. V. & J. B. Reed; that the firm name was subscribed to the note in question by Leonard Y. Reed; and that, previous to the giving of the note, each of the Reeds had repeatedly, with the knowledge and assent of the other, endorsed the name of their firm on promissory notes for the accommodation of the drawers thereof. The defendants objected that these facts did not show an authority on the part of Leonard Y. Reed to bind his co-partner as maker of an accom

p. 13

modation note; but the judge overruled the objection, and directed a verdict in favor of the plaintiff. A motion was now made in behalf of the defendants for a new trial, on a bill of exceptions.

C. L. Tracy, for the defendants.

J. A. Millard, for the plaintiff.

The Reeds being co-partners, had each repeatedly endorsed the name of their firm on accommodation notes, with the knowledge and assent of the other. The judge decided that the authority thence inferrible extended to the act of signing the firm name to such paper, as surety.

Had the endorsements been accompanied with a waiver of presentment and notice, they would have been the same in legal effect as making a note; and the proof of such endorsements .would have warranted the inference drawn by the judge. (Commercial Bank of Lake Erie v. Norton, 1 Hill, 501 , 504.) but the admission made at the trial stops with the general word endorsements. This imports no more than conditional obligations. The act of making a note imposes an absolute one. Suppose a written power to endorse: I do not think it would warrant making or accepting, or even waiving the proper steps to charge the principal, which, in the commercial world, are justly deemed a substantial benefit to the endorser. I am oí the opinion that no broader power was inferrible from the repeated acts of endorsement.

New trial granted.