Bleckley, Chief Justice.
1. The merits of this controversy were fully exposed at the trial. The parties introduced evidence pro and con, and all the facts touching consideration or want of consideration for the notes declared upon were brought out. From these it clearly appears that there was a full and sufficient consideration for the notes. This being so, the striking of the plea that the notes were without consideration is not cause for a new trial.
2. The plea which sought to contradict the notes by setting up an understanding that the maker was not to be bound, that the notes were executed for a purpose other than that of binding him to pay money — a purpose wholly at variance with their plain tenor and import, — contained no suggestion that the understanding and purpose alleged were evidenced by any writing, or that anything was omitted from the notes by fraud, accident or mistake. It contained no denial of the making and delivery of the notes, but simply sought to run [561]*561over them and crush them by an alleged contemporaneous understanding or agreement in conflict both with their letter and their legal effect. This plea presented no valid defence to the action, and there was no error in striking it.
3. If there was any error in striking the plea on the subject of partnership, on demurrer to the same, it is not apparent to this court; for the transcript of the record does not show that the declaration alleged anything as to a partnership or firm, and although the notes sued on were signed by the defendant in his own name with the addition of “& Co.” annexed thereto, we are unable to say whether the plea met any partnership element involved in the declaration or not. If the .declaration did not allege" that the notes were made by a partnership, or were the contracts of a partnership, a denial of the existence of that partnership would be idle and irrelevant. As the ease stands here there is no partnership element in it.
4. It does not appear that any person was sued except the defendant Iiirsch, now the plaintiff in error. Iiis plea of no partnership, if true, shows conclusively that no one else ought to have been sued. If he executed the notes he ought to pay them whether in fact he had a copartner or not, as he does not plead the nonjoinder of anybody. Surely-the addition of “ & Co.” to his name in executing the notes would not protect him against being severally liable thereon if there was nobody to join with him as a defendant in the suit.
5. It seems that Horne, the agent who represented the plaintiff in renting the premises and taking the rent notes, became the agent of the defendant, the tenant, to sublet the premises to another tenant; and it is contended that he misbehaved himself in this second agency. "Well, suppose he did. His principal in that agency was the defendant, and he must take the consequences. Surely [562]*562the misbehavior of the defendant’s agent cannot be imputed to the plaintiff, although the same person occupied both agencies.
6. Horne, the plaintiff’s agent, told the defendant, Hirsch, that the plaintiff’s son was her agent also. This was not competent evidence to prove the son’s agency, and the court was right in excluding it. Horne’s declaration to the defendant was not made pending any transaction in behalf of the plaintiff to which the declaration was pertinent so as to be a part of the res gestae of the transaction. There was no error in denying a, new trial. Judgment affirmed.
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