Salomon v. Hopkins , 61 Conn. 47 ( 1891 )

This suit was brought on the following note.

"NORWICH, Conn., September 13th, 1889.

"Four months after date I promise to pay to the order of Herny Salomon sixty dollars, at my office. 157 Franklin St., Norwich, Conn., for value received.

"A. J. J. H. HOPKINS."

Three persons were summoned as defendants in the action, which was made returnable before a justice of the peace, namely, A. J. Hopkins, J. H. Hopkins and J. M. Hopkins. J. M. Hopkins alone made defense. The case was appealed from the justice court to the Court of Common Pleas in New London County. In the latter court judgment was rendered in favor of the plaintiff to recover of J. M. Hopkins alone. He now appeals to this court.

The first reason of appeal is, that "the court erred and mistook the law in deciding, upon the facts found, that it was not necessary to a recovery by the plaintiff against this defendant that he prove the existence of a partnership of which this defendant was a member, and that such partnership promised by its note to pay the amount as alleged in paragraph first of the complaint."

This assignment of error cannot be sustained. It has long been the law in this state that where a cause of action shall be sustained against a part only of those who are made defendants in the cause, judgment may be rendered against them alone. Gen. Statutes. § 1108; Sanford v.French, 45 Conn., 101. That the defendants in this case were described as partners makes no difference in the application of this rule.

The finding shows that the note was given for goods sold and delivered by the payee of the note to J. M. Hopkins, against whom alone the judgment was rendered. It would seem that he has no ground to complain. He is liable, whatever may he said as to the other defendants. The objection, however, is made sharply technical — that as the first paragraph in the complaint alleges a promise by the defendants to pay by their note, and as there are three defendants, a joint promise by all of them must be proved. The objection overlooks the fact that the note is filed as a bill of particulars and so became a part of the complaint, and that the first paragraph thereby is an averment that the defendants promised to pay as appears in that note. If the note contained a joint promise only then the paragraph alleges a joint promise and no more; but if the note contains the several promise of each as well as the joint promise of all, then the paragraph alleges a several promise as well as a joint one. A note written as this one is — "I promise to pay," etc., is the several promise of each of the signers as well as the joint promise of all. 1 Parsons on Notes Bills, 251; Munson v. Drakely, 40 Conn., 552.

It is further urged that, as the name of J. M. Hopkins does not appear as a signer of the note, it was not admissible to prove a promise by him. But the evidence tended to show that the defendant had adopted the signature on the note as his own, either as a member of the partnership or as his own separate signature. In either aspect it was admissible. It is well settled that a man may make the name and signature of another virtually his own, by allowing it to be used as such in the course of his business. "It is a familiar principle that a man, either in his general dealings or in a particular transaction, may adopt whatever name he chooses and he will be humid accordingly." 1 Parsons on Notes Bills, 81; Lindus v. Bradwell, 5 Man. Gr. S., 582; Pease v. Pease,35 Conn., 131; Shaw v. Emery, 38 Maine, 484;Hancock Bank v. Joy, 41 Maine, 568; 1 Daniels on Negotiable Instruments, § 252; 1 Randolph on Commercial Paper, § 318; Gurney v. Evans, 3 Hurlst. Nor., 122.

Counsel for the defendant have argued the case as though the question of a partnership was an essential one. On the contrary it was not necessary to establish a partnership in order to make the defendant liable on the note. It is of no consequence whether the three original defendants as between themselves were or were not partners. If J. M. Hopkins was a partner then it is conceded that he is liable on the note. But if, not being a partner, he induced the payee of the note to part with the goods which were the consideration for the note, under the belief that he intended to be bound by the signature actually made thereto, he was properly so held. He was estopped to deny his liability. There is no error in the judgment appealed from.

In this opinion the other judges concurred.