Thorn v. Smith

21 Wend. 365

• Court: New York Supreme Court
• Decided: July 15, 1839
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

It was not competent for Smith by his declaration, even during the. existence of the partnership, to change what on the face of the transaction appeared to be an individual debt, into a debt against the firm. The plaintiff did not suppose that he was dealing with the firm when' he loaned his credit ■ but the contrary. The utmost length the cases have gone is to subject the firm, where the money has been borrowed by pne of the partners expressly "for the benefit of the partnership. 16 Wendell, 505. To sanction the principle contended for would enable ' a partner at any time to turn all his individual liabilities upon the partnership.

Had the note beén given in the partnership name, a different rule might ptevail.- Then the onus would lie upon Wright to show that it was given for Smith’s individual, debt. No such fact is shown. What the name of the firm is, no where appears. If Smith’s name alone constituted it, that fact should have 'been proved ; and even then, I apprehend, it would, have, been necessary further to - have shown that the note, when given, was avowedly given for the firm, and in that capacity—the signature alone not necessarily indicating such facts.

New trial granted.