*LOMAS v. BRADSHAW. April 26.

[*620

In an action by the payee against the maker of a promissory note, it is no answer for the latter to plead that the only consideration for the giving of the note was money advanced to the maker out of the funds of a friendly loan society of which both maker and payee were members, and that the payee was suing as treasurer and trustee on behalf of the society.

THIS was an action of debt. The first count of the declaration alleged that the defendant, on the 30th of May, 1845, made his promissory note for 45l., payable, three months after date, to the plaintiff or his order.

The defendant pleaded,-thirdly, that before and at the time of the making of the said promissory note, there was, and thence until the time of the commencement of this suit continued to be, and still was, a certain copartnership of persons using, and known by, the name of "The Manchester Dog and Partridge Thirty Pound Money Society," the names of which persons, except those of the plaintiff and the defendant, were to the defendant unknown; and that, before and at the time of the making of the said promissory note, and thence until the commencement of this suit, the plaintiff and defendant were and still continued respectively members of and copartners in the said copartnership; that the said promissory note was so made by the defendant, for the purpose of securing the repayment to the said copartnership of a certain sum of money, to wit, 45l., then advanced by the said copartnership to the defendant from and out of the funds of the said copartnership, for and to the use of the said copartnership; that there never was any consideration or value for so as aforesaid making the said promissory note, except as aforesaid; and that the plaintiff had brought the present action against him, the defendant, and then sued him, the defendant, upon the said note, on behalf of and for the use and benefit of himself, the *plaintiff, and of him, the defendant, and the [*621 other members and copartners of and in the said copartnership,verification.

Fourthly, that before and at the time of the making of the said promissory note as thereinafter mentioned, there was, and thence until and at the commencement of this suit there continued to be, and still was, a certain copartnership of persons using, and known by, the name of "The Manchester Dog and Partridge Thirty Pound Money Society," the names of which persons, except that of the defendant, were to the defendant unknown; that, before and at the time of the making of the said promissory note, as thereinafter mentioned, he, the defendant, was a member of and copartner in the said copartnership, and the plaintiff was, before and at the last-mentioned time, the treasurer and trustee of the same copartnership; that the defendant, as in the first count mentioned, made and delivered the said promissory note to the plaintiff, as treasurer and trustee as aforesaid, for securing the repayment by the

defendant to the said society, of a certain sum of money, to wit, the sum of 451., then advanced by the said copartnership to the defendant, as such member as aforesaid, out of the funds of the said copartnership, to be repaid by the defendant to the said copartnership for and to the use of the said copartnership; that he, the defendant, as in the declaration mentioned, made and delivered the said promissory note to the plaintiff, as such treasurer and trustee as aforesaid, for securing the repayment by the defendant to the said society of a certain sum of money, to wit, the sum of 45l., then advanced by the said copartnership to the defendant as such member as aforesaid, out of the funds of the said copartnership, for and to the use of the said copartnership; that there never was any consideration or value *for the said making of the *622] said note, except as aforesaid; and that, at the time of the commencement of this suit, the plaintiff held, and still continued to hold, the said note, as treasurer and trustee of and for the said copartnership, and commenced this suit, and then sued thereon, as such trustce on behalf and for the benefit of the defendant and the other members of the said copartnership,-verification.

Demurrer, and joinder.

Cowling, in support of the demurrer.-The pleas are bad. The grounds of defence here relied on are two,-first, a total absence of consideration for the giving of the note,-secondly, that, inasmuch as both the plaintiff and the defendant are interested in the funds of the partnership, the plaintiff is not in a situation to sue upon the note; being, in effect, both debtor and creditor. The first objection is clearly with out foundation. It is perfectly consistent with the pleas, that the defendant received the whole 451.; and the receipt of the money would be ample consideration for the note. To constitute a defence, the defendant should show that the failure of consideration was such, that, if this were money, instead of a promissory note, he could have recovered it back as money had and received to his use. The case of Stephens v. Wilkinson, 2 B. & Ad. 320 (E. C. L. R. vol. 22), is very much in point. There, in an action by the payee against the acceptor of a bill of exchange drawn for the balance of purchase-money of articles bought at a sale, it was held to be no defence, that, two months after the delivery of the goods to the vendee, the vendor forcibly retook possession of them; for, the vendee cannot treat that act as a rescinding of the contract, but must bring trespass. PARKE, J., there says: * Assuming that all the goods were taken possession of by the *623] vendor (which does not distinctly appear), to constitute want of consideration a defence to a bill of exchange, there must be such a total failure as would have enabled the vendee to recover back the whole money, if money had been paid instead of the bill. Total failure of consideration is, where the party has been deprived entirely of all benefit of the thing for which the thing was given; and then he might recover

back the money paid, if there had been a money payment." Apply that here if the defendant would have had no defence had this been money, he clearly has none to this note. So, in Jones v. Jones, 6 M. & W. 84,† in debt by the payee against the maker of a promissory note payable on demand, a plea that the note was given as and for the purchasemoney to be paid to the plaintiff for land agreed to be sold by the plaintiff to the defendant, and that no memorandum or note of the contract in writing was signed by the defendant, or any person lawfully authorized by him, and that there was not any consideration or value for the making or payment of the note, except as aforesaid,-was held bad on general demurrer. The plaintiff's right to sue upon the note is in no degree affected by the relative position of the parties. In Sharp v. Warren, 6 Price, 131, it was held that assumpsit for money had and received may be maintained against one who had been a member of a benefit club, for money intrusted to his keeping by the rest of the society, in the name of the officers properly appointed for managing their affairs, under the articles; and it is no objection to such an action, that the defendant was a partner or tenant in common. In Jackson v. Stopherd, 2 C. & M. 361,† BAYLEY, B., says: "Upon the general rule of law there is no difficulty. *One partner cannot maintain an [*624 action for a balance on the partnership account, until the accounts have been settled and adjusted, and until it is ascertained what is the balance due from the partner against whom the claim is made. But there may be special bargains by which particular transactions are insulated and separated from the winding up of the concern, and are taken out of the general law of partnership." Here, the note declared upon is made payable to the plaintiff, and he alone has a legal right to sue upon it. Jones v. Woollam, 5 B. & Ald. 769 (E. C. L. R. vol. 7), 1 D. & R. 393 (E. C. L. R. vol. 16), 2 Chitt. R. 322 (E. C. L. R. vol. 18), is also an authority to show that this objection is not well founded.

Crompton, contrà.-The pleas are good. There was clearly no con sideration for the giving of the note, as between these parties, though there might have been as between the plaintiff and the other members of the society and the defendant.

WILDE, C. J.-I am of opinion that neither of these pleas affords any defence to this action. The defendant, a member of the society, borrows out of a fund in which the whole are interested a certain sum of money for his own individual use, and gives a promissory note for the amount, payable to the plaintiff. I see no pretence for suggesting any want or failure of consideration, or any principle upon which the plaintiff is prevented from enforcing the security.

The rest of the court concurring,

Judgment for the plaintiff.

CASES

ARGUED AND DETERMINED

IN THE

COURT OF COMMON PLEAS,

IN

Crinity Cerm,

IN THE

THIRTEENTH YEAR OF THE REIGN OF VICTORIA. 1850.

The Judges who sat in Banco during this Term were:

HUDSPETH v. YARNOLD. May 22.

., the manager of a theatre, by letter, proposes to B., an actor, an engagement at 21. per week, determinable by a month's notice. B. performs under this proposal. Notice is given by letter to B. to determine the employment, unless B. will consent to a reduction of salary. In a third letter, A. writes, "I have received your letter, and upon reconsideration, will give you the same terms, 21., for the summer season." Held, that the first and third letters contained merely proposals, and that as no agreement was constituted between the parties until those proposals had been expressly accepted, or tacitly acquiesced in, by B., the correspondence was admissible in evidence without an agreement stamp.

In debt for 50%. the defendant pleaded as to 15l. 6o. 8d. non-joinder of a co-debtor, and as to the residue, never indebted. The defendant obtained a verdict upon the non-joinder. As to the residue, the plaintiff proved a debt for 35l. 58. Sd., reduced by payments to 117. 58. 8d. Held, that the defendant was entitled to a suggestion to deprive the plaintiff of costs, under the County Courts Act, 9 & 10 Vict. c. 95, s. 129.

DEBT, for 501. due for wages. The defendant, as to 15l. 68. 8d., pleaded non-joinder of J. K., a co-debtor; and, as to the residue, nunquam indebitata.

At the trial before WILDE, C. J., at Westminster, after the last term, it appeared that the plaintiff acted at the *Pavilion Theatre, of *626] which the defendant was manager, from Christmas, 1848, to May, 1849, when the defendant took J. K. into partnership; and that the 151. 68. 8d. mentioned in the plea was for services performed during

the partnership. To prove his title to salary for twenty-two weeks at the rate of 21. per week, the following letters were offered in evidence :

17th November, 1848.

"Sir,—If you are disposed to take a weekly salary of 21., and a clear half-yearly benefit, I think I could receive you at Christmas, provided the terms suit you, and a month's notice on either side in case of separation. I beg to apologize for not answering a former application. Perhaps you will be more polite, and let me have your reply.

EMMA YARNOLD."

14th April, 1849.

"Sir, I am desired by Mrs. Yarnold to inform you, that * * * she can only offer you for the ensuing summer season, the sum 17. 10s. per week. Should this not meet your views, Mrs. Y. is reluctantly compelled to inform you that your services will not be required after the 26th June, 1849. An answer is required not later than the 18th of April. CHARLES GERRARD, for

"Mrs. YARNOLD."

"21st April, 1849.

"Sir,—I have received your letter, and, on reconsideration, will give you the same terms, 21. per week, for the summer season.

EMMA YARNOLD."

It was objected that these letters could not be read for want of a stamp.

This objection was overruled, and the plaintiff obtained a verdict for 117. 58. 8d., being the amount of *salary due at 21. per week, [*627 after deducting the 157. 6s. 8d., for which the defendant was not solely liable, and payments to the amount of 247. made on account. Leave was reserved to the defendant to move to enter a nonsuit, if the court should be of opinion that the letters were not admissible in evidence under the circumstances.

In Easter term, Hawkins obtained a rule nisi to enter a nonsuit, or a suggestion to deprive the plaintiff of costs under the County Courts Act.(a)

Joyce now showed cause.-The first letter contained a proposal, accompanied by a request that the plaintiff would reply to it. The proposal appears to have been acceded to, on the part of the plaintiff, either expressly by parol, or tacitly by acting under it. But such acquiescence would not have the effect of converting the proposal itself into an agreement requiring a stamp. The actual agreement between the parties would consist partly of the proposal in writing, and partly of matter extrinsic of the writing; Vollans v. Fletcher, 1 Exch. 20 ;†

(a) 9 & 10 Vict. c. 95, s. 129.