Perkins, J. —
On the 18th of July, 1839, the State Bank of Indiana sued out of the clerk’s office of the Allen Circuit Court, a writ of foreign attachment against Henry J. Seaman and Nathaniel Norton, as partners, under the name of Seaman and Norton. On the 21st of September following, Allen Hamilton, Cyrus Taber, and Thomas Hamilton, as partners, under the name of Hamilton, Taber, and Co., filed a claim, under the attachment, against said Seaman and Norton, as partners, as aforesaid. That claim was for 488 dollars and 26 cents, due, as they alleged, by virtue of a draft drawn on the 8th of November, 1838, by said Hamilton, Taber, and Co., in favor of Dennison and York, upon said Seaman and Norton, and by them accepted on the 17th of the same month, but which they failed to pay. A like, though in truth the same, sum was claimed for money paid, &c.
Norton appeared and pleaded the general issue, under ■ oath, to the claim of Hamilton, Taber, and Co. The- issue was tried by a jury, and found for the defendants. A new trial was denied, and judgment rendered upon the finding of the jury. The evidence is upon the record. It shows the following facts:
. On the 20th of December, 1836, the defendants, Seaman and Norton, were partners in trade in the city of New York, and, as such, had a note, indorsed by Bailey, Keeler, and Remsen, discounted, for their own benefit, at the branch of our State Bank at Fort Wayne. On the 1st of February, 1837, they dissolved partnership, and, on the 3d of the same month, published, in the New York papers, the following notice thereof, and also inclosed copies of the same by mail to their correspondents, among whom were Hamilton, Taber, and Co., and the Branch Bank at Fort Wayne:
“The co-partnership heretofore existing between the subscribers, under the firm of Seaman and Norton, is this [187]*187day dissolved by mutual consent. Tbe business of the firm will be settled by Henry J. Seaman, who is hereby authorized to sign the name of the firm for that purpose.
“Henry J. Seaman,
“Nathaniel Norton.”
On the 20th of March, 1837, the note discounted in bank was renewed by a note drawn by Seaman, in the name of Seaman and Norton, for 4,500 dollars. This was protested, and again renewed by Seaman, in the name of Seaman and Norton, for 3,600 dollars, on. the 1st of August, 1837, and was, afterwards, quartei'ly or semi-annually, reduced and renewed in the same manner, till the 6th of November, 1838, when its amount was 2,600 dollars. At that date, being the day on which it was required to be again reduced and renewed, Hamilton, Taber, and Co., having received a letter in the hand-writing of Seaman, signed Seaman and Norton, requesting them so to do, advanced 478 dollars and 68 cents on said renewal, and, to obtain re-payment, drew, as by said letter they were directed to do, on Seaman and Norton, at New York. The draft was accepted by Seaman, in the name of Seaman and Norton, but was not paid. This accepted draft was given in evidence as the foundation of the claim of Hamilton, Taber, and Co., under the attachment. After the dissolution of the firm of Seaman and Norton, a partnership was formed under the name of Norton and Co., in which Norton and one Robinson wele the active partners, and Seaman a dormant one. This company occupied the same place of business as had been used by Seaman and Norton; and Seaman also continued there in settling up the business of the old firm, kept his books in the same safe with, and equally accessible to, Norton and Co., and received there his notices of protests, &c. Norton and Co., also, in some instances, advanced money to pay debts of Seaman and Norton, whose credit they were anxious to sustain. Such is the evidence upon the record.
It is claimed that the Court erred in refusing to grant a new trial. This leads us to consider as to the correct[188]*188ness of the judgment upon the evidence. It is insisted that the plaintiffs were entitled to recover upon the acceptance against both Seaman and Norton; and if not upon that, then, that they should have recovered against them upon the common counts for money paid to their use. Could they recover upon the acceptance? As it was not actually signed by Norton, there could be no recovery upon it against him, unless Seaman was authorized, as to these plaintiffs, to place his (Norton’s) name to it. Seaman was not authorized to so use Norton’s name, by virtue of his power as partner, as that had been previously revoked by a dissolution of the firm, and notice thereof given to the plaintiffs. He was not authorized thus to use it by the power contained in the notice of the dissolution, as such power only enabled him to settle and receipt for dues to the firm, and to pay the debts it owed out of means he might possess, and not to contract new debts in the partnership name, even for the payment of old ones; Col. on Part. 492; and we do not think that the circumstances proved, viz., that Seaman kept his office, if we may so call it, for the settling up of the business of the extinct firm, in the store of Norton and Co. — that his notices of protests were left there — that his books were accessible to Norton; and that money was advanced by Norton and Co. for the payment of Seaman and Norton’s debts, were sufficient to justify the jury in finding, over Norton’s oath, that he did authorize the use made of his name made by Seaman. These facts were not at all incompatible with a different view of the subject, and tended, as we think, but very slightly to prove that Norton authorized Seaman to sign his name to an obligation to pay money. Could they recover on the count for money paid to the use of Seaman and Norton? It may well be doubted whether fifis money was paid upon a debt owed by those men. If Seaman had no power, after the dissolution, to renew the note in bank in the firm name, then, as the bank had notice of the dissolution, the note, though signed Seaman and Norton, was but the individual note of Seaman. And, on the dissolution of a [189]*189partnership, the note of one of its members may be given and received for a firm debt under such circumstances as to discharge those whose names are omitted. 1 Smith’s L. C. 333. But we shall put this case upon a different ground. Admitting, for the sake of the argument, that the advancement made by the plaintiffs was upon a debt due from Seaman and Norton, still, as the partnership had terminated, the power of the partners individually to borrow money to pay said debt was but that of ordinary joint debtors.
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Perkins, J. —
On the 18th of July, 1839, the State Bank of Indiana sued out of the clerk’s office of the Allen Circuit Court, a writ of foreign attachment against Henry J. Seaman and Nathaniel Norton, as partners, under the name of Seaman and Norton. On the 21st of September following, Allen Hamilton, Cyrus Taber, and Thomas Hamilton, as partners, under the name of Hamilton, Taber, and Co., filed a claim, under the attachment, against said Seaman and Norton, as partners, as aforesaid. That claim was for 488 dollars and 26 cents, due, as they alleged, by virtue of a draft drawn on the 8th of November, 1838, by said Hamilton, Taber, and Co., in favor of Dennison and York, upon said Seaman and Norton, and by them accepted on the 17th of the same month, but which they failed to pay. A like, though in truth the same, sum was claimed for money paid, &c.
Norton appeared and pleaded the general issue, under ■ oath, to the claim of Hamilton, Taber, and Co. The- issue was tried by a jury, and found for the defendants. A new trial was denied, and judgment rendered upon the finding of the jury. The evidence is upon the record. It shows the following facts:
. On the 20th of December, 1836, the defendants, Seaman and Norton, were partners in trade in the city of New York, and, as such, had a note, indorsed by Bailey, Keeler, and Remsen, discounted, for their own benefit, at the branch of our State Bank at Fort Wayne. On the 1st of February, 1837, they dissolved partnership, and, on the 3d of the same month, published, in the New York papers, the following notice thereof, and also inclosed copies of the same by mail to their correspondents, among whom were Hamilton, Taber, and Co., and the Branch Bank at Fort Wayne:
“The co-partnership heretofore existing between the subscribers, under the firm of Seaman and Norton, is this [187]*187day dissolved by mutual consent. Tbe business of the firm will be settled by Henry J. Seaman, who is hereby authorized to sign the name of the firm for that purpose.
“Henry J. Seaman,
“Nathaniel Norton.”
On the 20th of March, 1837, the note discounted in bank was renewed by a note drawn by Seaman, in the name of Seaman and Norton, for 4,500 dollars. This was protested, and again renewed by Seaman, in the name of Seaman and Norton, for 3,600 dollars, on. the 1st of August, 1837, and was, afterwards, quartei'ly or semi-annually, reduced and renewed in the same manner, till the 6th of November, 1838, when its amount was 2,600 dollars. At that date, being the day on which it was required to be again reduced and renewed, Hamilton, Taber, and Co., having received a letter in the hand-writing of Seaman, signed Seaman and Norton, requesting them so to do, advanced 478 dollars and 68 cents on said renewal, and, to obtain re-payment, drew, as by said letter they were directed to do, on Seaman and Norton, at New York. The draft was accepted by Seaman, in the name of Seaman and Norton, but was not paid. This accepted draft was given in evidence as the foundation of the claim of Hamilton, Taber, and Co., under the attachment. After the dissolution of the firm of Seaman and Norton, a partnership was formed under the name of Norton and Co., in which Norton and one Robinson wele the active partners, and Seaman a dormant one. This company occupied the same place of business as had been used by Seaman and Norton; and Seaman also continued there in settling up the business of the old firm, kept his books in the same safe with, and equally accessible to, Norton and Co., and received there his notices of protests, &c. Norton and Co., also, in some instances, advanced money to pay debts of Seaman and Norton, whose credit they were anxious to sustain. Such is the evidence upon the record.
It is claimed that the Court erred in refusing to grant a new trial. This leads us to consider as to the correct[188]*188ness of the judgment upon the evidence. It is insisted that the plaintiffs were entitled to recover upon the acceptance against both Seaman and Norton; and if not upon that, then, that they should have recovered against them upon the common counts for money paid to their use. Could they recover upon the acceptance? As it was not actually signed by Norton, there could be no recovery upon it against him, unless Seaman was authorized, as to these plaintiffs, to place his (Norton’s) name to it. Seaman was not authorized to so use Norton’s name, by virtue of his power as partner, as that had been previously revoked by a dissolution of the firm, and notice thereof given to the plaintiffs. He was not authorized thus to use it by the power contained in the notice of the dissolution, as such power only enabled him to settle and receipt for dues to the firm, and to pay the debts it owed out of means he might possess, and not to contract new debts in the partnership name, even for the payment of old ones; Col. on Part. 492; and we do not think that the circumstances proved, viz., that Seaman kept his office, if we may so call it, for the settling up of the business of the extinct firm, in the store of Norton and Co. — that his notices of protests were left there — that his books were accessible to Norton; and that money was advanced by Norton and Co. for the payment of Seaman and Norton’s debts, were sufficient to justify the jury in finding, over Norton’s oath, that he did authorize the use made of his name made by Seaman. These facts were not at all incompatible with a different view of the subject, and tended, as we think, but very slightly to prove that Norton authorized Seaman to sign his name to an obligation to pay money. Could they recover on the count for money paid to the use of Seaman and Norton? It may well be doubted whether fifis money was paid upon a debt owed by those men. If Seaman had no power, after the dissolution, to renew the note in bank in the firm name, then, as the bank had notice of the dissolution, the note, though signed Seaman and Norton, was but the individual note of Seaman. And, on the dissolution of a [189]*189partnership, the note of one of its members may be given and received for a firm debt under such circumstances as to discharge those whose names are omitted. 1 Smith’s L. C. 333. But we shall put this case upon a different ground. Admitting, for the sake of the argument, that the advancement made by the plaintiffs was upon a debt due from Seaman and Norton, still, as the partnership had terminated, the power of the partners individually to borrow money to pay said debt was but that of ordinary joint debtors. Can, then, one of two joint makers of a note borrow money to pay on such note, and thereby render his co-joint debtor liable with him for the money borrowed? We need not argue this question to show that he cannot. The money advanced by the plaintiffs in tins case was, in reality, so borrowed by Seaman. It was obtained upon the special request contained in the letter mentioned in the evidence, written, after the cessation of the partnership, by Seaman, though signed Seaman and Norton. As the plaintiffs had notice, previously, of the dissolution of the firm, they were bound to know that, prima facie, Norton's name was wrongfully used, and he not bound by its use. The letter was to them, then, a simple request of Seaman to pay this money for Seaman and Norton. Admitting, therefore, that the payment accrued to Norton's benefit, still the plaintiffs could not recover, for money paid to his use, against him. They could not make him their debtor but upon his request; and the fact that the money in question was advanced upon the express request of Seaman, excludes the idea of an implied request by Seaman and Norton that otherwise might perhaps be entertained. We think the Court did not err in refusing to grant the new trial.
D. H. Colerick and J. G. Walpole, for the appellants.
F. P. Randall, for the appellees.
Holding the judgment below right upon the evidence, we shall not examine the instructions there given; for, should we regard them erroneous, we should not, for that reason, reverse a right judgment.
Per Curiam.
-The judgment is affirmed with costs, &c.