Phineas Thurston, Surv. Partner of Arthur L. Fogg, vs. Thomas Lloyd, 4 Md. 283

Eccleston, J., delivered the opinion of this court.

The first instruction given by the court below, at the instance of the plaintiff is, “ that there is no evidence that the note in controversy was ante-dated, or that it was given for a private debt of either member of the firm, or for any purpose other than a partnership transaction; and, therefore, the plaintiff had a right to recover, if the jury believed from the evidence that the note was signed in the partnership name, by either of the partners, during the existence of the partnership.” After a full and minute examination of the testimony, we do not perceive any evidence legally tending to' prove the' note was ante-dated, or given for the separate liability of either partner, or for any transaction not of a partnership character.

For the right of the court to tell the jury, there is no evidence sufficient in law, to establish the fact sought to be proved, see Farmers Bank of Maryland, vs. Duval, 7 G. & J., 95. It is needless to refer to the other cases on the' subject. Under the circumstances the plaintiff had a right to recover if the jury believed the note was signed in the manner stated in the prayer. The appellant considers this instruction erroneous, because it does not submit to the jury the question, whether the consideration of th-e note' was a partnership debt.

This, he says’, is a material fact, to be established by proof,- on the part of the plaintiff. We do not consider the objection’ a valid one. In cases similar to the present, the general rule is, that where a note is proved to' have been signed by one member of an existing firm, in the partnership name, the legal presumption is,that it was given for a joint indebtedness in the regular course of partnership dealings, until the contrary is shown on the part of the defence. Doty vs. Bates, 11 Johns. Rep., 546. Mifflin vs. Smith, 17, Serg. & Rawle, 165, 170. Whitaker vs. Brown, 16 Wend., 505.

Story on Part., sec. 102, note 1, and note 1 to sec. 127 on page 192. We have said there is no evidence contradicting this presumption of law, or in other words, there is no proof of the note having been given for any other than a partnership transaction; and we may add, that there is evidence calculated' to prove,- the consideration of the note was a loan of money ter the firm. If there had been- evidence to show the note was based upon a separate liability, the objection relied upon-,might have been urged with propriety; but in thé absence of such- proof, there was no error in granting- the prayer.

The' se'cond instruction is, “that there is' no evidence of Oollusion between Fogg and Lloyd, whereby the latter agreed to take the note of the firm for the individual debt of Fogg.” The- appellee insists that there is evidence from which the jury might have found collusion between the plaintiff and Eogg, and that the note was for the private debt of the latter. What has been said in regard to the proof in the cause whilst considering the first prayer renders it unnecessary to say more on that subject at this time.

Another objection to the last prayer, urged in the printed argument of the appellant’s counsel is, that it “puts no question to the jury essential to entitle the plaintiff to recover, but solely instructs them that there is no evidence of certain theories of facts — certain abstract propositions — which, even if in fact there was no such evidence, the plaintiff’s right to recover would not recover, or be in anywise affected.” Assuming, without admitting, the instruction is an abstracttion, still we cannot reverse the judgment, because the defendant was not prejudiced by it.

If there had been evidence of collusion, then such an instruction, would have been erroneous, and subject to reversal, as it would be giving a prayer at the instance of the plaintiff, disregarding the proof of the opposite party. But as in our opinion there is no proof, legally tending to establish collusion; the court having told the jury there was no such evidence, the appellee could not be injured by the instruction, for the plain and manifest reason, that he had no proof on which to sustain such a defence.

If a prayer in this case had been granted at the instance of the appellee, that there was testimony offered or given, which, if believed by the jury to be true, did tend to prove collusion, such an instruction might properly have been complained of by the plaintiff, because by it the jury might have been misled, and brought to the conclusion that such proof was in the cause, when in reality none such existed. We, therefore, affirm the judgment. Judgment affirmed.