Emerson v. Harmon , 14 Me. 271 ( 1837 )

The opinion of the Court was drawn up by

Weston C. J.

The note, although dated before the advertisement, announcing a partnership between the defendants, was indorsed after it was formed. It does not appear, that the broker knew for what purpose or for whom the money was raised, or that it was not wanted on account of the partnership, or to what uses it was applied. Besides, it is not in proof, that he was employed by the plaintiff to purchase the note. He was constituted the agent of Harmon, one of the defendants, to procure the note discounted, for which he received a commission.

The plaintiff purchased it, upon the credit of the makers and indorsers, without any intimation, or any reason to suspect, from any evidence in the case, that the name of the firm was not properly and fairly indorsed upon the note. If one of the firm has abused the confidence, reposed in him by his copartner, third persons, who receive the name of the firm, without notice of any fraud practised or meditated, are not to be deprived of their security. The cases cited for the defendant show, that knowledge of such fraud must be carried home to him who receives the security, or the partnership is liable. Arden v. Sharpe, 2 Esp. 523; Swan et al. v. Steele, 7 East, 210.

' The declarations of Silsby, one of the defendants, when notified of the dishonor of the note, the plaintiff not being present, were not legal evidence, and were properly excluded’. The res gesta was the notice. What was said by the defendant, was in no proper sense a part of it; although it might have been occasioned by if. To receive it, would be to make the declarations of a party evidence in his own favor. If Harmon, who received the money, misapplied it, or withheld it from the firm, it does not impair the plaintiff’s right to recover, unless he was privy to such misapplication. Nor could his rights be affected by any agreement of which he had no notice, between the makers and Harmon, to divide the money between them, instead of applying it to the use of the firm.

The Judge was not requested by the counsel for the defendant to instruct the jury upon the point of usury, if it was a ground taken at the trial. He contended generally upon the evidence, that the plaintiff was not entitled to recover; but the Judge instructed otherwise. If the note was tainted with usury, and the defendant was entitled to take advantage of the objection against the plaintiff, he would, by the statute of 1834, c. 122, be entitled to recover all but the excess. That the defendant might in that case have avoided, if he had pleaded or relied upon the statute, and claimed a special instruction upon this point. But this was not done, nor was the excess ascertained, by any evidence adduced in the case.

In our judgment, the ruling and directions of the Judge, who presided at the trial, were warranted by law.

Exceptions overruled.