Joyce v. Williams

14 Wend. 141

• Court: New York Supreme Court
• Decided: July 15, 1835
• Status: Published

Opinion

By the Court,

Sutherland, J.

The learned judge who tried the cause decided, that there was nothing in the testimony throwing upon the plaintiff the necessity of proving the knowledge or consent of the defendant Johnson to the giving the acceptance on which the suit was brought. In this opinion I think he erred. What were the leading facts in the case, as testified to by Guiteau, the plaintiff’s clerk ? He stated that he was clerk and salesman to the plaintiff, when the acceptance on which the suit is brought was taken ; that Samuel D. Flagg, the drawer, called at the plaintiff’s store to purchase hats. He looked at the hats, and he and witness agreed upon the price ; that Flagg then inquired whether he would take Denison Williams & Co.’s acceptance for the amount. After consultation with the plaintiff Joyce, who was sick and not in the store, witness agreed to take it; that the goods were accordingly turned out to Flagg, and the draft taken by the witness from Flagg, accepted as it now is—and that it was all one transaction. That the sale .was made to Flagg and the bill was made out to him, and receipted as paid by the draft. They had never before sold any goods to Flagg. That these goods were sold and delivered on the faith of Denison Williams & Co.’s acceptance. Flagg had no funds in the hands of Denison Williams & Co. when the draft was accepted, but was indebted to them in a small amount. The acceptance is the hand-writing oi' Denison Williams. The draft was not entered in their books, and the firm had no interest in or connection with the transaction other than the bare act of acceptance by Williams, one of the firm, The plaintiff Joyce then, when he took this acceptance, knew that it was not given for a partnership debt of Denison Williams & Co., but as security for the debt of Flagg, a third person. It was not a pre-existing security in the hands of Flagg, but it was drawn and accepted for the precise amount of his debt to the plaintiff. It stands upon the same footing in principle, as though Flagg had given his note for the goods, and Denison Williams had subscribed the copartnership name of . Denison Williams & Co. to it as sureties ; or as though Denison Williams himself had made the purchase on his own individual account, (the plaintiff so understanding the fact at the time,) and had given a note or accepted a draft for the amount in the partnership name. It has been repeatedly decided in this court, that in either of those cases the other partners would not be bound, unless they had been previously consulted and assented to the transaction; and that the burthen of proving such assent rested upon the plaintiff. 2 Caines, 246. 2 Johns. R. 300. 4 id. 251. 16 id. 38. Foot v. Sabin, 19 id, 154. Laverty v. Burr, 1 Wendell, 529. Williams and others v. Walbridge. 3 id. 415. Vallett and others v. Parker, 6 id. 615. Bank of Rochester v. Bowen and others, 7 id. 158. Boyd and others v. Plumb and others, id. 309.

In England, the signature of the firm, though made by one of the partners for his own individual debt, is prima facie evidence that all assented to it; and the other partners will be bound, unless they show that it was done without their knowledge or consent. Ridley v. Taylor, 13 East, 175. With us, when it is shown that the party taking the paper of the firm knew that it was not given for a partnership debt or transaction, he cannot recover without proving that all assented to it. The rule is established, and it is unnecessary to go into a review of the cases. They appear to be precisely applicable to this case. It was incumbent upon the plaintiff to show the knowledge or consent of Johnson to the giving of this acceptance. Without such proof Johnson is not liable.

New trial granted.