Reubin v. Cohen , 48 Cal. 545 ( 1874 )

By the Court:

At the instance of the plaintiff, the Court below instructed the jury “that if Sperling was informed of the fact of the giving of. these, notes by his copartner, Cohen, in the name of the firm, and omitted to repudiate or disaffirm, within a reasonable time, what had been done by Cohen, he will be held to have ratified and adopted what he, Cohen, had done in the firm name.”

The indebtedness for which the notes were given was the indebtedness of Cohen in the first instance, and not that of the copartnership firm of Cohen & Sperling. The instruction, assuming as it does that Sperling did not assent to the transaction at the time the note was delivered, and,- of course, that he was not then bound thereby, nevertheless asserts the rule of law to be that, if he was afterward informed of the fact that the firm notes had been so given he would become bound thereby, unless he should thereupon, or within a reasonable time, “ repudiate or disaffirm ” them. It may be conceded that his failure to object under such circumstances, would be evidence tending in some degree to show, assent upon his part to the giving of the notes, and so the jury were substantially told in the instruction next preceding the one we are now considering.' But to say that a mere failure to actively repudiate the transaction amounts per se in point of law, to a ratification or adoption of the notes, is unwarranted by recognized principles defining the powers and obligations of copartners.

Judgment and order denying new trial reversed, and cause remanded for a new trial.