President.
This suit is brought on three several promissory notes, executed by Milton G-oodeuow to Rice, ge6¿ & q0> an¿ endorsed by Rice, as agent of and partner -n yie comparLy} to Rice & Reed. No question is made but what the notes were given for good and valuable considerations, and remain unpaid; nor is it suggested, but that the transfer of these notes to Rice & Reed was fair and bona fide: objections are made to a recovery in this suit, not because a recovery would be unjust and inequitable, but because as it is said certain necessary forms have not been adhered to in such transfer, and are not observed in the declaration; and if these objections are supported by the principles of law or the rules of pleading the defendant is entitled to the benefit of them.
The first objection is made to the declaration; that it does not set forth the names of the persons composing the firm of Rice, Reed & Co. The reason why it is necessary to set forth the names of all the parties to a suit, does not apply to those who are not parties. A mercantile company may sign or endorse notes or bills, by one of the partners, or by an agent of the firm; and, in either case, the name of the firm is all that is necessary to complete the signature or endorsement. Such endorsement conveys a property in the note to the endorsee, and he brings a suit on it; the acceptor of the bill or the maker of the note, objects to a recovery, because the names of the endorsees are not fully set forth, and why set them forth ? That he may know who are liable to him for costs in any event of the suit ? Not at all. The plaintiffs are liable for the costs, not the persons who have assigned to them. I can see no reason whatever, for requiring this formality, and no case has been found where it has been adjudged necessary. In the case of Kane vs. Scofield, 2d Caines 368, the declaration stated the endorsement of a promissory note for a firm whose surnames only had been used in the following manner, “to certain persons using the name, style and firm of Willoughby & Weston,” and it afterwards stated their endorsement to the plaintiff thus: “and the said persons so using the names, style and firm of Willoughby & Weston, endorsed the said note, the proper hand writing of one of them, in their said co-partnership name, style and firm, being to such endorsement subscribed,” which was held good on general demurrer.
The second objection to the plaintiff’s recovery is, that the evidence of the notes being endorsed by Rice for himself and as agent for the company, does not support the averments in the first and second counts, that Rice, Reed & Co. “endorsed the said note, their own proper hand being to such endorsement subscribed,” nor that in the third count which states the endorsement “in his own proper hand.” The his, in the third count, appears to be a mere [133]*133clerical error, which might be amended at any time, as such I shall consider it in examining the force of this objection.
The case of Levy vs. Wilson. 5th Esp. Rep. 180, is cited as an authority directly iu point. It was assumpsit by the plaintiff, as endorsee of a promissory note drawn by the defendant, payable to Michael Jendwin’s heir, or order, and by one Sazonoff, by procuration from Michael Jendwin’s heir, endorsed to Jacob Samuel, and by Jacob Samuel to the plaintiff. The declaration stated that the defendant drew the note payable to Michael Jendwin’s heir, or order, and that he endorsed it, Ms own proper handvoriting being thereunto subscribed. When the note was produced, it appeared to be endorsed by bazonoff, by procuration from Michael Jendwin’s heir. The plaintiff was nonsuited for the variance. If Sazonoff, the procurator in this case, had endorsed the name of Michael Jendwin’s heir upon the note, then the case wrould have been similar to the case under consideration, and such endorsement -would have been good, and would have supported the averment in the declaration.-In this case Eice, one of the partners, endorses the notes in the name of the firm; and the question is, whether such endorsements may be declared on as the endorsements of the company. In 1st Caines, 192, it is decided that “ an endorsement in the name of a firm, by a partner, is good, and may be declared on as the endorsement of the firm. In 2d Camp. Rep., 450, action by the endorsee against the acceptor of a bill of exchange, lord Ellenborough said he thought it would be too narrow a construction of the words own hand, to require that the name should be written by the party himself; and he was inclined to think it would be enough to show the name written by an authorised agent; and in the same book, page 604, it is ruled that, if the defendants accepted the bill by an agent, in contemplation of law, they accepted it themselves ; and it is a general rule in pleading, that facts may be stated according to their legal effect — so that, whether Eice was a partner in, or agent of, the firm of Rice, Reed & Co., it seems that th? endorsement was properly made, and is correctly described in the declaration. To these authorities may be added 2d Camp. Rep., 305, endorsees against drawers of a bill of exchange. The declaration stated that the defendants “made their certain bill of exchange in writing, their own proper hands being thereunto subscribed.” In fact their firm of A. & Co. was subscribed to the bill — the court refused to non-suit for the alledged variance — and 1st Caines, 505, in which it was decided that “an endorsee of a firm of which he was a member, may, on an endorsement made by himself in the style of the partnership, maintain an [134]*134ac^011 against the maker of a promissory note.” The case of Levy vs. Wilson, is good law; bnt it cannot be seen that ^ jg a¿ inconsistent with the cases I have mentioned, or £]ia¿ indeed it has any bearing upon the case at bar.
The third and last objection to the plaintiff’s recovery is, that the notes are endorsed with the name of a firm which was dissolved; and I am reminded by the defendant, that the note described in the second count, bears date after the dissolution of the partnership. The evidence of the time when the partnership of Rice, Reed & Co. was dissolved, and that these notes were endorsed by Rice after such dissolution, is contáined in the deposition of Frederick W. Rice-; he states that the partnership was dissolved on the 6th day of March, 1811; and in answer to the question put by the defendant’s attorney — When were the notes negociated ? he says, “ I only know what Mr. Rice told me — he said he had a power of attorney to settle the concerns of the house, and endorsed these notes for that purpose after the dissolution of the firm, by authority specially given to him, with power to sign the partnership name for said concern.”
Two questions arise in this part of the case, requiring separate consideration : 1st. Can the drawer of a note, or the acceptor of a bill to A. B. & Co. be permitted to avoid payment of such note or bill, by proving that no such company in fact existed? 2d. Is the endorsement of a note, or the acceptance of a bill in a partnership name, by one of the partners, under a special authority from the others so to endorse or accept, after the partnership is dissolved, a good endorsement or acceptance ?
As to the first — there may have been a partnership as to the particular transaction or contract out of which the note of January 6th, 1812, arose; and the defendant, by drawing a note payable to Rice, Reed & Co.
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President.
This suit is brought on three several promissory notes, executed by Milton G-oodeuow to Rice, ge6¿ & q0> an¿ endorsed by Rice, as agent of and partner -n yie comparLy} to Rice & Reed. No question is made but what the notes were given for good and valuable considerations, and remain unpaid; nor is it suggested, but that the transfer of these notes to Rice & Reed was fair and bona fide: objections are made to a recovery in this suit, not because a recovery would be unjust and inequitable, but because as it is said certain necessary forms have not been adhered to in such transfer, and are not observed in the declaration; and if these objections are supported by the principles of law or the rules of pleading the defendant is entitled to the benefit of them.
The first objection is made to the declaration; that it does not set forth the names of the persons composing the firm of Rice, Reed & Co. The reason why it is necessary to set forth the names of all the parties to a suit, does not apply to those who are not parties. A mercantile company may sign or endorse notes or bills, by one of the partners, or by an agent of the firm; and, in either case, the name of the firm is all that is necessary to complete the signature or endorsement. Such endorsement conveys a property in the note to the endorsee, and he brings a suit on it; the acceptor of the bill or the maker of the note, objects to a recovery, because the names of the endorsees are not fully set forth, and why set them forth ? That he may know who are liable to him for costs in any event of the suit ? Not at all. The plaintiffs are liable for the costs, not the persons who have assigned to them. I can see no reason whatever, for requiring this formality, and no case has been found where it has been adjudged necessary. In the case of Kane vs. Scofield, 2d Caines 368, the declaration stated the endorsement of a promissory note for a firm whose surnames only had been used in the following manner, “to certain persons using the name, style and firm of Willoughby & Weston,” and it afterwards stated their endorsement to the plaintiff thus: “and the said persons so using the names, style and firm of Willoughby & Weston, endorsed the said note, the proper hand writing of one of them, in their said co-partnership name, style and firm, being to such endorsement subscribed,” which was held good on general demurrer.
The second objection to the plaintiff’s recovery is, that the evidence of the notes being endorsed by Rice for himself and as agent for the company, does not support the averments in the first and second counts, that Rice, Reed & Co. “endorsed the said note, their own proper hand being to such endorsement subscribed,” nor that in the third count which states the endorsement “in his own proper hand.” The his, in the third count, appears to be a mere [133]*133clerical error, which might be amended at any time, as such I shall consider it in examining the force of this objection.
The case of Levy vs. Wilson. 5th Esp. Rep. 180, is cited as an authority directly iu point. It was assumpsit by the plaintiff, as endorsee of a promissory note drawn by the defendant, payable to Michael Jendwin’s heir, or order, and by one Sazonoff, by procuration from Michael Jendwin’s heir, endorsed to Jacob Samuel, and by Jacob Samuel to the plaintiff. The declaration stated that the defendant drew the note payable to Michael Jendwin’s heir, or order, and that he endorsed it, Ms own proper handvoriting being thereunto subscribed. When the note was produced, it appeared to be endorsed by bazonoff, by procuration from Michael Jendwin’s heir. The plaintiff was nonsuited for the variance. If Sazonoff, the procurator in this case, had endorsed the name of Michael Jendwin’s heir upon the note, then the case wrould have been similar to the case under consideration, and such endorsement -would have been good, and would have supported the averment in the declaration.-In this case Eice, one of the partners, endorses the notes in the name of the firm; and the question is, whether such endorsements may be declared on as the endorsements of the company. In 1st Caines, 192, it is decided that “ an endorsement in the name of a firm, by a partner, is good, and may be declared on as the endorsement of the firm. In 2d Camp. Rep., 450, action by the endorsee against the acceptor of a bill of exchange, lord Ellenborough said he thought it would be too narrow a construction of the words own hand, to require that the name should be written by the party himself; and he was inclined to think it would be enough to show the name written by an authorised agent; and in the same book, page 604, it is ruled that, if the defendants accepted the bill by an agent, in contemplation of law, they accepted it themselves ; and it is a general rule in pleading, that facts may be stated according to their legal effect — so that, whether Eice was a partner in, or agent of, the firm of Rice, Reed & Co., it seems that th? endorsement was properly made, and is correctly described in the declaration. To these authorities may be added 2d Camp. Rep., 305, endorsees against drawers of a bill of exchange. The declaration stated that the defendants “made their certain bill of exchange in writing, their own proper hands being thereunto subscribed.” In fact their firm of A. & Co. was subscribed to the bill — the court refused to non-suit for the alledged variance — and 1st Caines, 505, in which it was decided that “an endorsee of a firm of which he was a member, may, on an endorsement made by himself in the style of the partnership, maintain an [134]*134ac^011 against the maker of a promissory note.” The case of Levy vs. Wilson, is good law; bnt it cannot be seen that ^ jg a¿ inconsistent with the cases I have mentioned, or £]ia¿ indeed it has any bearing upon the case at bar.
The third and last objection to the plaintiff’s recovery is, that the notes are endorsed with the name of a firm which was dissolved; and I am reminded by the defendant, that the note described in the second count, bears date after the dissolution of the partnership. The evidence of the time when the partnership of Rice, Reed & Co. was dissolved, and that these notes were endorsed by Rice after such dissolution, is contáined in the deposition of Frederick W. Rice-; he states that the partnership was dissolved on the 6th day of March, 1811; and in answer to the question put by the defendant’s attorney — When were the notes negociated ? he says, “ I only know what Mr. Rice told me — he said he had a power of attorney to settle the concerns of the house, and endorsed these notes for that purpose after the dissolution of the firm, by authority specially given to him, with power to sign the partnership name for said concern.”
Two questions arise in this part of the case, requiring separate consideration : 1st. Can the drawer of a note, or the acceptor of a bill to A. B. & Co. be permitted to avoid payment of such note or bill, by proving that no such company in fact existed? 2d. Is the endorsement of a note, or the acceptance of a bill in a partnership name, by one of the partners, under a special authority from the others so to endorse or accept, after the partnership is dissolved, a good endorsement or acceptance ?
As to the first — there may have been a partnership as to the particular transaction or contract out of which the note of January 6th, 1812, arose; and the defendant, by drawing a note payable to Rice, Reed & Co. or order, acknowledged the existence of a co-partnership to which he was indebted, and which might, as to him, use the name or description he had given them. 5th Com. Dig., 52, 76, 82. In the case of Carvick vs. Vickery, Doug. 653, n. a bill of exchange was 'in the following form:
“ Mr. Abraham Vickery, two months after date please pay to us, or our order, the sum of, &c.
“JOHN MA YD WELL.
“ JOHN MA YD WELL.”
It was endorsed thus :
“JN. MAYDWELL.
“ HOLLOWAY.”
the court were unanimously of opinion that the Maydwells, by making the bill payable to “our order,” had made themselves [135]*135partners as to this transaction; and although the jury found a verdict contrary to such opinion, it was a verdict expressly founded on the practice ol the London merchants, and does not impeach the evidence of what the law is generally, to be found in the unanimous opinion of the court.
In 1st Camp. Rep. 82, it was ruled, that in an action against the drawers of a bill of exchange, drawn by a firm upon one partner, if it be proved that the bill was accepted by the drawee, this was sufficient evidence of its having been regularly drawn. And in the case of Jones and another, vs. Radford, 1 Camp. Rep. 83, action by the endorsee against the acceptor of a bill of exchange payable to two persons of the name of Hopkins & M'Mitchel, the bill had been endorsed by Hopkins, in the name of himself and M'Mitchel, and defendant had accepted it with this endorsement upon it. The defence was, that the payees were not partners, and that the bill ought, therefore, to have been endorsed by both : but lord Ellenborough held, that the defendant, having accepted the bill endorsed by one for himself and the other, could not now dispute the regularity of this endorsement. The case of Gibson and Johnson vs. Minet and Fector, 1st Hen. Black. 569, is a strong case to shew that the drawer of a note, or the acceptor of a bill, shall nob be permitted to avoid payment of it on such ground as is here attempted. And it may be observed in this ease, as it was in that, “ bargains shall be enforced, undertakings shall be executed, and promises to pay shall be performed. The rule of law, that a man’s own acts shall be taken most strongly against himself, obtains not only in grants, but extends in principle to all other engagements and undertakings.” I conceive, therefore, that the drawer of these notes shall not be heard to say in a court of justice, that as he never intended to pay them, so because he has inserted Rice, Reed & Company in them, he never shall be compelled to pay them. The acceptor of a bill, and the drawer of a note, incur a similar liability; if either undertake to pay to certain persons as a company, it is clearly competent to the payees to sue or endorse the obligation as a co-partnership.
The next and last point for consideration, is the endorsement of these notes by Rice. It is said that the name of each partner should be endorsed, and not the name of the firm after it is dissolved. I can find no authority to support this position. The case of Abel and another, vs. Sutton, 3d Esp. Rep. 108, is cited as decisive of this point; but in that case the endorsement had been made of the partnership name after the partnership had been dissolved, by one .of the partners [136]*136without authority from the other — and what lord Kenyon says, “ if a fair bill existed at the time of the partnership, jg no£ pU^ circulation until after the dissolution, all partners must join in making it negociable,” is undoubted law — but how join ? All the partners in the firm of Rice, Reed & Co. did join in endorsing these notes for quod faoit per aliwm facit per se. It is no where said that the agent making an endorsement with full power, shall write the name of each partner at length. In Osborne and Amphlett vs. Harper, 5th East 225, one partner drew a bill in the partnership firm, in favor of one D. after the dissolution of the partnership — D. recovered, because he did not lenow of the dissolution. This could not be, if such use of the name of a former firm was void in law. The case of Lansing vs. Gaine & Ten Eyck, 2d Johns. Rep. 307, shews that after the dissolution of a partnership, a special authority to negociate notes in the name of the firm, is all that is necessary to render such endorsements as these valid; and the case of Sanford vs. Mickles & Forman, 4th Johns. 224, is to the same point. Both these are cases where, after the dissolution of the partnership, one of the partners used the name of the firm without authority from the other, and on that ground only it was holden that the partner whose name was thus used without his consent, was not bound. The case of Eaton vs. Taylor, 10th Mass. Rep. 54, is a direct authority to shew that the name of a firm may be used by virtue of a special authority, after such firm is dissolved.
When a note has been given to a company, by their co-partnership name, the most convenient and the usual manner of endorsing it, is with the name of the firm; while the partnership exists, this may be done by any one of the partners, and his act binds the rest, and wherefore, but because the law presumes that he has authority ? After the partnership ceases as to every other matter, it may continue as to a property in the notes and bills given or endorsed to the company; and surely a special authority by the whole concern, to one of the partners, or to a stranger, to endorse the name of the firm on such notes or bills, may be executed, without contravening any principle of the law.
On the whole, therefore, it appears, that these objections to the plaintifi’s recovery, cannot be sustained on any just or legal principle; they must, therefore, have judgment on the verdict.