Fairchild v. Rushmore — 21 N.Y. Super. Ct. 698

Majority

p. 698

Horace J. Fairchild et al., Plaintiffs and Respondents, v. Thomas L. Rushmore et al., Defendants and Appellants.

Headnote

1- Where the complaint on a bill or note alleges that the defendants were partners, and as such made it, an answer simply denying that they made the note admits the partnership.

2. Such answer may be struck out as sham, on proof that one of the defendants made the note in the firm name.

3. It is not an answer to such motion, to show that the note was made after the dissolution of the firm, if the plaintiffs show a previous course of dealing between them and the firm, and the defendants do not show that plaintiffs had any notice of the dissolution.

(Before Bosworth, Ch. J., and Monomer and Robertson, J. J.)

Heard, November 30;

decided, December 7, 1861.

An appeal from an order striking out an answer as sham. The action is brought on a promissory note made by the firm of Bushmore, Cone & Co., in favor of themselves, and by them indorsed in their firm name.

The plaintiffs were Horace J. Fairchild and Henry A. Fanshawe; the defendants were Thomas L. Bushmore, John A. Cone, Pendleton G. De Craw, William A. Harding, James A. Timpson, William Johnson, George Corbin and Lyell T. Olmstead.

The complaint alleges that the defendants, at the time set forth therein, were partners under such firm name. The answer simply denies that the defendants either made, indorsed or delivered the promissory note in question, and is sworn to by only the defendant, Cone. The affidavit of one of the plaintiffs, on which this motion is made, shows that them firm sold to the defendants merchandise

p. 699

at different times from the 1st to the 26th of Ebvember, 1860, on a credit of 8 months, upon some of which sales it was afterwards agreed a longer credit should be given; and the note in suit was brought by a clerk of the defendants, in settlement, and a receipt therefor given in their receipt book; and that both the signature and indorsement of such note is in the handwriting of Harding, one of the defendants. The affidavit of all the defendants except Harding, discloses that none of them ever made or indorsed the note in question, and that their firm was dissolved before the making and giving thereof, and the sale and delivery of all the merchandise mentioned in the plaintiffs’ affidavit. There was no evidence of notice of dissolution to the plaintiffs.

William A. Coursen, for defendants, (appellants.)

A. F. Smith, for plaintiffs, (respondents.)

The order appealed from should be affirmed upon two grounds:

Fvrst. The answer admits the partnership of the defendants at the time of making the note alleged in the complaint, by not controverting it.

Second. The defendants’ affidavit impliedly admits dealings between them as a partnership, and the plaintiffs, by sales of merchandise, and does not pretend any notice of dissolution before new dealings.

The allegation of partnership is an allegation of the authority of that defendant who signed and indorsed the note, to bind the others thereby. It is possible, under the answer, they might have been entitled to set up that such authority had ceased, if the allegations had not been express in the complaint that it continued until the making of the note; this reduces the denial of the answer to an allegation of a fact, to wit, that none of the defendants made the note, from an allegation of a conclusion of law, to wit, that they had not done any act by which in law they became makers of the note. The defendants’ affidavit

p. 700

does not deny the making of the note by one of the partners, and therefore the answer was sham.

It is not entirely clear that the answer is not also frivolous, becauses it only takes issue on the making and indorsing of the note by the defendants, personally and jointly, and not by any of them, or the authority of any of them; but the foregoing grounds are sufficient.