Thurston v. Lloyd

Eccleston, J., delivered the opinion of this court. The first instruction given by the court below, at the instance of the plaintiff is, “ that there is no evidence that the note in controversy was ante-dated, or that it was given for a private debt of either member of the firm, or for any purpose other than a partnership transaction; and, therefore, the plaintiff had a right to recover, if the jury believed from the evidence that the note was signed in the partnership name, by either of the partners, during the existence of the partnership.” After a full and minute examination of the testimony, we ²⁸⁸ do not perceive any evidence legally tending to' prove the' note was ante-dated, or given for the separate liability of either partner, or for any transaction not of a partnership character. For the right of the court to tell the jury, there is no evidence sufficient in law, to establish the fact sought to be proved, see Farmers Bank of Maryland, vs. Duval, 7 G. & J., 95 . It is needless to refer to the other cases on the' subject.

Under the circumstances the plaintiff had a right to recover if the jury believed the note was signed in the manner stated in the prayer. The appellant considers this instruction erroneous, because it does not submit to the jury the question, whether the consideration of th-e note' was a partnership debt. This, he says’, is a material fact, to be established by proof,- on the part of the plaintiff. We do not consider the objection’ a valid one.

In cases similar to the present, the general rule is, that where a note is proved to' have been signed by one member of an existing firm, in the partnership name, the legal presumption is,that it was given for a joint indebtedness in the regular course of partnership dealings, until the contrary is shown on the part of the defence. Doty vs. Bates, 11 Johns. Rep., 546. Mifflin vs. Smith, 17, Serg. & Rawle, 165, 170.

Whitaker vs. Brown, 16 Wend., 505 . Story on Part., sec. 102, note 1, and note 1 to sec. 127 on page 192. We have said there is no evidence contradicting this presumption of law, or in other words, there is no proof of the note having been given for any other than a partnership transaction; and we may add, that there is evidence calculated' to prove,- the consideration of the note was a loan of money