Langan v. Hewett

Citations

• 21 Miss. 122

Syllabus

<p>The case of Andrews v. The Planter's Bank, 7 S. & M. 192, — deciding that where one of two partners subscribes the copartnership name to a note, as sureties for a third person, without the authority or consent of the other partner, the latter is not bound, and it lies upon the plaintiff to prove the consent or authority of the other, — cited and confirmed.</p> <p>A firm being in debt for a steamboat, sold it to a third party, and took his notes for the purchase money, payable to their creditor, and one of the partners signed the firm name to the notes of the third party thus given for the boat, expressing on the face of the notes that they were sureties, and delivered them to their creditor, who took them in satisfaction of the debt of the firm to him; in an action by the creditor on these notes, the partner who had not signed pleaded non est factum: Held, that under the facts he was liable on the notes; it was not the ease of one partner signing the firm name as sureties for a third person, but it was the debt of the firm, and but a change in the form of the security.</p> <p>A securityship is to be distinguished not so much by the name as by the nature of the transaction.</p> <p>While it is true, one partner cannot, in violation of known stipulations in the articles of partnership, bind the firm, even for money which is applied in liquidation of the debts of the firm, yet the principle would not apply to the case of the signature of the firm, by one of the partners to a note to a creditor of the firm, not on a new liability, but for a pre-existing debt.</p> <p>On the trial of a suit against a member of a firm, the name of which had been subscribed as sureties to a note, and who had plead non est factum, the court below at the instance of the plaintiff, instructed the jury, that “ to discharge members of a partnership not executing the note from the liability of a suretyship contracted in the firm name, it must appear to have been without the scope of the partner