Caldwell v. Sithens

5 Blackf. 99, 1839 Ind. LEXIS 27

• Court: Indiana Supreme Court
• Decided: May 23, 1839
• Status: Published

Opinion

Sullivan, J.

Sithens■ brought an action of assumpsit against Caldwell, Saxon, and Johnson, on a note in the following form :— .

“December 7, 1835. One day after date, due Jesse Sfthens 267 dollars and 87 cents for work done on west river bridge. For the company of William, Caldwell, William Saxon, and William Johnson. — By me William Johnson.”

The defendants pleaded the general issue. On the trial, the note was offered in evidence and objected to by defendants ; but the Court admitted it as evidence of the promise laid in the declaration. This is the only error assigned.

This case may be somewhat assimilated to the case of Lord Galway v. Matthew and Smithson, surviving partners of T. Whitsmith, in 1 Camp. Rep. 403. In that case, the form of the note sued on was as follows: “ December 16, 1805. Sixty days after date, I pay Lord Viscount Galway or order 200l. value received. For J. Matthew, T. Whitsmith, and T. Smithson. — J. Matthew. ”

It was contended in that case, as it is in this, that the note was- binding only on the person who signed it; that it was a mere ■ personal undertaking by the signer of the note to pay a sum of money supposed to be due from himself and his copartners. Lord Ellenborough held, however, that a note-made in that manner was sufficient on the face of it to bind the whole firm.

C. B. Smith, for the plaintiff. O. H. Smith, for the defendant.

The copartnership of the defendants is acknowledged, and there can be no doubt, but that Johnson had the power to bind the firm.

Per Curiam.

The judgment is affirmed with 3 per cent. damages and costs.