John A. Parker versus John Macomber, 18 Pick. 505

Shaw C. J. delivered the opinion of the Court. The plaintiff sues as indorsee of two promissory notes, charging the defendant as promiser. As the circumstances of the two notes are entirely distinct, it will be necessary to consider them separately. The first note was made by the defendant as promiser, payable to a firm, of which he was one of the partners, and remained unpaid, and neither negotiated nor indorsed, till after the dissolution of the partnership to whom it was payable.

It was also negotiated and must have come to the plaintiff long after it had become due, and as a dishonored note ; and he was put upon his guard, by this fact apparent on the face of the note. It is, therefore, subject to all the equitable defences to which it would be liable as between original parties. It then appears, that a general "dissolution of this partnership took place, and notice thereof was given in December, 1832, about four years after the note in question had been due ; and two of the former partners were authorized in general terms, to collect the debts and settle the business of the firm.

The note in question, unindorsed, was left in their custody with the other effects of the late firm. It was afterwards indorsed by one of the partners who were thus authorized to settle, in the name of the late firm, and under that indorsement came into the hands of the plaintiff. We consider it wholly immaterial, whether this was done with or without the consent of the other partner, and, therefore, the testimony of Daniel Howland junior, which was objected to, was immaterial.

Under these circumstances, we are all of opinion, that Bradford Howland had no authority, by the indorsement of the name of the late firm on the note, to transfer and effectually pass a legal title in the note, and that the plaintiff derived no title under such indorsement, taking it, as he does, as a dishonored note. The indorsement was a new contract, made by one in the name of the firm after a dissolution.

No such authority belonged to one or two partners after a dissolution of the partnership, by the general rules of the mercantile law, arising out of their relation as partners ; and we think it equally clear, that no such authority was conferred by the agreement of dissolution and notice, authorizing them to collect the debts and settle and close the concern.

It was stated in argument, that as the defendant knew, that this note was outstanding against himself, when the dissolution took place, and the authority was given to the two other partners to collect the debts, and pay the demands against the firm, he must be presumed to have intended to give them an authority to negotiate this note.

But we cannot perceive the correctness of this inference Were it sound, as each partner must be presumed to know of all the negotiable bills and drafts due to the firm, and unindorsed at the time of the dissolution, he must be presumed to have intended to give an authority to negotiate them in the name of the firm. But if this were so, the general rule of law would be, that an authority to settle the business, would be of course an authority to indorse negotiable securities ; but the general rule is clearly otherwise.

Some reasons, which would not be applicable to the note of a third person, apply with great force to restrain the negotiation of a note held by the firm against one of the partners, especially a note long overdue. In the hands of the firm it was merely a voucher for an item m account, between the firm and one of its members, and it cannot be presumed, without very explicit words, that it was intended to give an authority to any of the partners after dissolution, to negotiate such a note, and thus render the promiser liable to the action of a third person.

If it be said, that the proceeds may be needed to pay the debts of the firm, the answer, we think, is plain. The promiser on this note was liable with the other partners, for all the debts of the firm, independently of this note ; and as between the partners themselves, if upon a settlement of the partnership account, on which Ma-comber, the maker of this note, should be debited for the amount of it, there should be a balance against him, their remedy would be by a bill in equity. Under the circumstances, the Court are of opinion, that the plaintiff has no cause of action on this note and indorsement.

I beg to be understood as not intending to express an opinion, that where a note is given by one member of a firm, payable to his firm, that they may not indorse it and negotiate and put it in circulation, and that a party taking it in due course of business cannot maintain an action on it, on the supposed objection, that in its origin, it was payable to a firm, of which he ■was a member, and which firm could have maintained no action against him, on the note.

The reason why no action could be maintained in that case, is a mere technical one, namely, that a man cannot be plaintiff and defendant in the same action ; but where the technical impediment is removed by an actual indorsement and negotiation, made whilst the authority so to indarse in the name of the firm continues, the holder may claim a valid title through such indorsement of the firm. The other note stands on a different footing. It was a note made by the defendant, after the dissolution of the partnership, payable to.James H. Howland or his order.

It was indorsed by Howland, so as to be payable to bearer without recourse to him, and was passed to the two Howlands in part satisfaction of the debt of Howland, due to the late firm of Macomber & Co. ; and he bad credit for it, as such payment. It is contended, that by this indorsement, delivery and payment, the property in the note vested in all the members of the late firm, and though it was under a blank indorsement, it could not be passed by delivery, so as to vest a valid title in the holder, without the act of all the partners. But we are of opinion, that this defence cannot be maintained.

Being under a blank indorsement and passing by delivery, the title vested in any person or persons legally becoming the holders for value. Now we think the authority given to the two partners, the How-lands, to collect the debts and settle the affairs of the late firm, gave them authority to receive negotiable notes and drafts, as a means of obtaining payments. If so, they must be deemed to have received this note, as agents to settle ; they received it in their own right and the property vested in them.

This being the case, as they would take merchandise, bank-stock, or other articles, affording the means of raising money, and getting in the debts, they had a right to dispose of the property, for the same purpose ; and it being á mercantile agency, each had the requisite authority. As they took the note under a blank indorsement, and it was in a condition to pass by a mere delivery, no indorsement of the firm was necessary ; and the want of author ity, arising from a want of legal power to make such indorsement, applicable to the case of the other note, does not apply to this.

If it be said, that they, being agents, took this note for the use and benefit of all the members of the late firm, and so the title vested in them, we think it is necessary to distinguish between the legal and the beneficial interest. Undoubtedly the beneficial interest was in the members of the late firm , and the agents were bound to -render an account of the property and apply the proceeds to their benefit.

But this :s quite con«¡stent with their taking a legal interest themselves, in the security, in the same manner as if they had taken goods, bank notes, or other property, to be turned into money and accounted for, pursuant to the trust and authority reposed in them for that purpose.

We are, therefore, of opinion, that the property in this note did not vest in the members of the late firm, of which the promiser was one ; that he did not' become a joint proprietor, or tenant in common, or acquire any property in the note specifically ; that the Howlands, or either of them, taking it as they did, had a sufficient authority to negotiate and transfer it by delivery, and that though the plaintiff acquired it when overdue, as there is no defence to it, he has a good and legal right to recover the amount of it in this action.