Sutton v. Dillaye , 3 Barb. 529 ( 1848 )

By the Court,

Gridley, J.

It cannot be maintained that F. C. Dillaye was responsible upon the undertaking of his brother to collect the plaintiff’s note, and account for the moneys collected. It is true that the proposition to collect the note was signed in the name of the copartnership firm; but it is equally true that the transaction occurred a year after the partnership was dissolved, and after the plaintiff must have had notice of the dissolution. He was a neighboring merchant in a small village, and the notice, given in the manner stated by Birdsall, must have reached him. Besides, the plaintiff’s knowledge of the dissolution was proved by his own witness, Farrington, Again; it was offered to be proved by showing that Farrington, his clerk and agent, who, in his behalf, parted with the note on the proposition to receive and collect it, was aware of the dissolution when he placed the note in the' hands of H. A. Dil-laye. This offer was erroneously rejected; for the knowledge of the agent is the knowledge of the principal. And for this reason alone the judgment of the justice was properly reversed. (2 Hill, 464. Jeffrey v. Bigelow, 13 Wend. 518.) I assume, however, for the purpose of this argument, that the plaintiff had knowledge of the dissolution: and then it seems to me clear, 1st. That H. A. Dillaye had no right after the partnership was dissolved, to bind his late copartner, by an agreement to collect moneys in the copartnership name, for a third person. Such an agreement had no necessary or legitimate connexion with the winding up of the old business. (2 John. 302. 3 Id. 536. National Bank v. Norton, 1 Hill, 572.) 2dly. That the action cannot be maintained upon the ground that the proceeds of the note went into the copartnership fujids, and were used for the benefit of the firm. That H. A. Dillaye had borrowed notes and collected them in the same suits in which he had prosecuted demands belonging to the late firm, imposed no obligation upon the other copartner whose name had been improperly used. The latter part of the proposition is not proved. There is no evidence that any part of the proceeds of the note in question was ever applied for the benefit of the firm. The alleged confessions of F. C. Dillaye do not establish this positiom They were the taunting and ironical remarks of a man, Uttered in the midst of a conversation in which he was denying, in the strongest terms, that he had the slightest connexion with the transaction out of which the plaintiff’s claim arose, or that the money had ever been used for the benefit of the firm of which he had been a member. The entire scope of his remarks was, that he was a total stranger to the transaction, and that the matter was the individual and exclusive concern of his brother. He treated the claim which the plaintiff made upon him with scorn, and denounced it as an insult, alleging as a reason that it was “ Harry’s concern,” and not bis. It would be strange indeed, if under such circumstances, he should intentionally admit that he had any part in the collection of the note, or in the use of the money. But he did nót. The remarks relied on as admissions, are obviously ironical, and are a far more forcible repudiation of his own liability than would have been a simple denial of it. They may not have been made in the best temper or taste; but to construé them as admissions, would be to torture them into a meaning directly opposite to that which they were intended to express;

The process iti this case was served oil F. C. Dillaye only. 'This would seem, therefore, to be an attempt to collect of him a demand which was the proper debt of his brother to pay; and who, moreover, had never been called on to pay it, so far as any light is thrown upon that point by the evidence in the cause.

There was another error which appears to-us to present an unquestionable ground for reversing the judgment of the justice; and that consists in permitting the witness, Coats, to testify to the contents of a judgment record, notwithstanding an objection duly made.

Upon the whole, we think that the judgment of the common pleas should be affirmed.