Faith v. Kirk v. Blurton. In Faith v. Richmond (7), persons carrying on business in partnership under the name of The Newcastle and Sunderland Wallsend Coal Company, were held not liable on a note issued in the name of The Newcastle Coal Company; and in Kirk v. Blurton (m), where two persons carried on business under the name of John Blurton, one of them was held not liable on a *bill drawn and indorsed by the other in the name of John Blurton & Co. On the other hand, in Norton v. Seymour (n), where the name of the firm was Seymour & Ayres, a promissory note signed by one of the partners thus-" Thomas Seymour & Sarah Ayres," was held to bind both. *345 Norton v. Sey mour. Effect of frequent use of wrong name. In the above cases of Faith v. Richmond, and Kirk v. Blurton, the name used was not the name of the firm sought to be made liable, nor was there any evidence to show that the firm was in the habit of making use of the name in question. If there had been such evidence the firm would have been liable; for whatever the name used may be, if it is that ordinarily employed by a partner whose business it is to attend to the bills and notes of the firm, the other partners will not be heard to say that such name is not the name of a firm for the purpose for which he has habitually used it. Williamson v. Therefore, where the name of a firm was Hapgood & Co., but the managing partner was in the habit of indorsing bills Johnson. of the firm in the name of Hapgood & Fowler, which had formerly been the name of the firm, it was held that such indorsement was valid, although the other partners were not shown to have authorized the use of the name in question. (0) persons using Again, although in Faith v. Richmond and Kirk v. Blurton, the Liability of firm was held not bound, in consequence of the name the wrong name. of the firm not being used, those members of the firm who actually made use of the names in question were held liable; for the name used was made theirs by their own act. (p) (1) 11 A. & E. 339. (m) 9 M. & W. 284. This case was decided on the right principle; but most persons will probably agree with Martin, B., in thinking that the principle was not properly applied, and that it should have been left to the jury to say whether John Blurton and John Blur ton & Co. did not in fact mean the same thing. See per Martin, B., 5 H. & N. 517. (n) 3 C. B. 792. (0) Williamson v. Johnson, 1 B. & C. 146. (p) So in Wild v. Keep, 6 C. & P. 235, a person of the name of Joseph Upon the same principle, if blank bills are drawn and indorsed by a firm, and before they are negotiated one partner dies and the name of the firm is changed by the surviving partners, and the bills previously drawn and indorsed are then negotiated; *these bills will be binding on the new firm, although the *346 name on the bills is that of the old firm and not that of the new. (q) error in name is A bill drawn on a firm by a wrong name and accepted in its right name, binds the firm (r); and a bill drawn on a Cases in which firm and accepted by one partner in his own name unimportant. only, has been held to bind the firm on the ground that the word "accepted," if written by one of the partners, is sufficient without any signature; and that his signature, if affixed, may be treated as redundant. (s)1 But there is no other case in which a firm is liable Keep was held liable on a bill accepted by himself in the name of John Keep & Co. (q) Usher v. Dauncey, 4 Camp. 97. If a change is made in a firm, and by a mistake a contract is entered into with it in its old name, the members of the new firm may sue on it, provided the other party is not prejudiced by their so doing, Mitchell v. Lapage, Holt, N. P. Ca. 253. But see Boulton v. Jones, 2 H. & N. 564. (r) Lloyd v. Ashby, 2 B. & Ad. 23. (s) Mason v. Rumsey, 1 Camp. 384. Jenkins v. Morris, 16 M. & W. 879; Byles on Bills, 43 and 45, ed. 11. In such a case the acceptor may also be sued alone. See infra. 'Beach v. State Bank, 2 Ind. 488; Pannell v. Phillips, 55 Geo. 618; Tolman v. Hanrohen, 44 Wis. 133. Contra, Heenan v. Nash, 8 Minn. 407. The act of drawing a bill by one partner, in his own name, on the firm of which he is a member, for the use of the partnership, is in law an acceptance by the drawer in behalf of the firm; and an action may be maintained against the firm as on an accepted bill. Dougal v. Cowles, 5 Day, 511. If a partner, acting under the au thority of the firm, given by parol, to take up money on joint account, and draw therefor on A, does draw a bill of exchange in his own name, but directs the amount to be charged to account of the firm, and the parties, knowing the facts, receive the cargo, purchased with the funds so raised, without objection, the payee may recover of the partners as on a partnership draft, or a draft guaranteed to the holder by them. Reimsdyk v. Kane, 1 Gall. 630. A firm did business in Richmond under the name of D. M. & Co., all the members residing there except A, who was in London, where he carried on business in his own name. B drew a bill of exchange on A in London, "on account of D. M. & Co.," which was accepted by A: Held, in a suit by B, the drawer, that this was the individual acceptance of A, who alone was liable thereon, though the firm of D. M. & Co. might be liable for the amount of the bill, on proof that the bill was drawn on account of money contracted to be paid by D. M. & Co. Cunningham v. Smithson, 12 Leigh, 32. A draft drawn by one only of three partners, but on their joint credit, and for their joint benefit, may be recovered Drawee and acceptor not identical. on a negotiable instrument, made, drawn, or indorsed in the name of one of the partners only (t), unless, indeed, his name is the name of the firm. (u) Even a bill drawn on one partner and accepted by him on behalf of the firm does not bind the firm, the other partners not being drawees (x)2; and on the same principle a bill drawn on the directors of a company, and accepted for the company by its manager and three of its directors, binds the three directors who accept the bill, but no one else. (y) A fortiori, a bill drawn on the agent of a company, and accepted by him simply in his own name, binds him and not the company. (2) On the other hand, a bill drawn on a company and accepted by its directors, secretary, or other authorized agent on its behalf or as its agent, binds the company and not those who accept the bill, except so far as they are members of the company. (a) But to this last rule there is an exception where the company *347 is a limited company, and *the word "limited " is omitted, for then the agent accepting the bill is personally liable. (6) The following examples illustrate these propoExamples of foregoing rules. sitions: In Thomas v. Bishop (c), the bill was drawn on John Bishop, cashier of the York Buildings Company, and was accepted by Bishop in his own name, without reference to the company, and he was held by Lord Hardwicke to be personally liable on the bill. Thomas v. In Serrell v. Serrell v. The Derbyshire, &c., Railway Company. The Derbyshire, Staffordshire, &c., Railway Company (d), a cheque was drawn on the bankers of a company, and was signed by three directors, and countersigned by the secretary, and on the cheque was a date stamp, with the name of the company in a circle round the as an item in an account against the firm. Beebe v. Rogers, 3 Iowa, 319. (t) Emly v. Lye, 15 East, 7; Ex parte Bolitho, Buck. 100; Lloyd . Ashby, 2 C. & P. 138; Williams v. Thomas, 6 Esq. 18. (u) As to which see ante, pp. 341, 342. (x) Nicholls v. Diamond, 9 Ex. 154; Mare v. Charles, 5 E. & B. 978. "One of the members of a partnership carrying on business in Virginia, resided in London, but no house was established in London. The plaintiff drew a bill on the member of the firm residing in London, expressed to be bill was accepted by the drawee in his (a) See Edwards v. Cameron's Coalbrook Co., 6 Ex. 269; Halford v. Cameron's Coalbrook Co., 16 Q. B., 442, and Eastwood v. Bain, 3 H. & N. 738. (b) See the Companies act, 1862, § 42, and Penrose v. Martyr, E. B. & E. 499. (c) 7 Mod. 180. (d) 9 C. B. 811. date; but the company was held not liable upon the cheque, for it did not purport to be a cheque of the company. The persons who signed the cheque had not even signed it as directors. In Bult v. Morell (e), the bill was drawn on the Directors of the Imperial Salt and Alkali Company, and was accepted for the Imperial Salt and Alkali Company, and signed Bult v. Morell. Richard Parker, Manager, Richard Garrett, The three last named persons only were held liable on the bill. Directors. In Nicholls v. Diamond (ƒ), the bill was drawn on "Mr. James Diamond, purser, West Downs Mining Company," and was accepted'thus, "James Diamond, accepted per proc. West Downs Mining Company." Dia- Diamond. mond was held liable on this bill. Nicholls v. In Mare v. Charles (g), a bill was drawn on Wm. Charles for goods supplied to a mine, and was "accepted for the company, Wm. Charles," and this Mare v. acceptance was held to render Charles solely liable. Charles. Uster. If a bill is drawn on the firm and is accepted by one partner, although this binds the firm, (h) it also binds the partner Owen v. Van accepting the bill, who may alone be sued on it. This was held in Owen v. Van Uster, (i) where a bill was drawn on "The Allty-Crib Mining Company," and was accepted “per proc. The Allty-Crib Mining Company, W. T. Van Uster, *London Manager." It was held that Van Uster was personally liable on this bill, he being one of the company on which the bill was drawn, and therefore one of the drawees, and also an acceptor. Thirdly, as regards promissory notes.' *348 With respect to prom issory notes the following rules are deducible from the (c) Promissory cases: (e) 12 A. E. & E. 745. (ƒ) 9 Ex. 154. (g) 5 E. & B. 978. (h) See ante, p. 346, note. (s) (i) 10 C. B. 318. The company in this case was a mere partnership. 'See, generally, Ewell's Evans on Agency, *177, 186, et seq., and notes. Generally, when a member of a firm makes a note, or draws a bill in his own name though it is known to be on the partnership account, the firm will not be bound. Re Warren, Davies, 320; notes. Farmers' Bank v. Bayless, 35 Mo. 428; A note, given in the individual name of one partner, is prima facie deemed his individual obligation, unless his partner be a dormant partner. Scott v. Colmesnil, 7 J. J. Marsh. 416; Graeff v. Hitchman, 5 Watts, 454. The taking, not as payment, of the individual note of one partner for money loaned, though it may be evidence that the loan was not made to the firm, is not conclusive of that fact. Where 1. If a partner promises for himself, and not for himself and Promise by one co-partners, he only is liable on the note, though he may promise to pay a partnership debt. (k) partner. such individual note of one partner is taken for a loan made at the time to the firm, the presumption is that it was not taken as payment. Hoeflinger v. Wells, 47 Wis. 628. It has been held that to bind a partner by a note drawn by his co-partner in his own individual name, it must appear that such individual name was the style of the firm. Macklin v. Crotcher, 6 Bush, 401. The signature of one partner to negotiable paper, however, binds all, though he signs only his own name, if, from the paper itself, it appears to be on partnership account, and to be intended to have a joint operation. Crozier v. Kirker, 4 Tex. 252. Where only one member of a firm signs his individual name to a note, the firm will be bound thereby if they, as partners, made the contract, and the credit was given to them as such. Puckett v. Stokes, 58 Tenn. 442. In order to make a note, signed in the individual name of one of the partners, binding upon the firm, it must be made to appear, affirmatively, that it was given and received as a firm note, binding upon all the partners. Hubbell v. Woolf, 15 Ind. 204; Buckner v. Lee, 8 Ga. 285; Staats v. Howlett, 4 Den. 559. When a partnership is sued upon a promissory note, signed by one partner only in his individual name, which was not the firm style, the burden of proof is on the plaintiff to show that the note in fact, a partnership transaction; and the partnership will not be made liable by proof that the money was borrowed for the use of the firm, and was so used by them, and that the parties was. (k) Siffkin v. Walker, 2 Camp. 308; Murray v. Somerville, 2 Camp. 99, note; to the note were aware of those facts. if it also appears that the money was advanced on the personal credit of the individual partner, and the parties knew that the note was to be negotiated as the individual note of the maker. Farmers' Bank v. Bayliss, 41 Mo. 275. ness. Where one partner keeps the bank account of the firm in his own name, with the knowledge and consent of the others, all partnership debts and accounts being paid by checks drawn and signed by him alone, the firm is liable upon such a check drawn in its busiCrocker v. Colwell, 46 N. Y. 212. Where a firm, consisting of three members, is engaged in business as a private bank, and has been so engaged for about a year, with M., one of the partners, as resident and managing partner, and F., who has been in the habit of dealing with the bank, goes into its ordinary place of business, and intending to deal with it, hands over the counter, to such managing partner, fifty dollars, in the usual manner for deposit, and receives therefor, upon a printed blank in the name of the bank, a certificate of deposit signed by M.. and nothing is said about any personal loan to M., and no intimation given of any other than, as F. intended, a transaction with the bank, and F. has no knowledge of any agreement between the partners as to the form of the firm's blanks or the manner of the firm's signature: Held, that such certificate is binding upon the firm, and that, notwithstanding that M. did not affix to his signature to the certificate any such words as "cashier" or "managing partner," and although M. intended to and see Ex parte Harris, 1 Madd. 583. |