Joseph Trowbridge versus Spencer Cushman, 24 Pick. 310

Putnam J. drew up the opinion of the Court. The main question seems to be, whether the evidence which was admitted to prove that the plaintiff’s claim was against Curtis and Barstow as copartners, was competent testimony; for the result of the evidence cannot be questioned. It proves that the plaintiff’s demand was against the partnership, and of course, that it had a legal preference over the demand of the creditor for whom the defendant acted as an officer, for a claim against one of the individual partners.

The plaintiff’s claim was upon promissory notes made by Frederick Curtis and Charles Barstow, jointly and severally, to Leavitt Souther or order, and indorsed by the payee ; and the notes purport to be for value received.

And it is contended, that as they are not signed in the name of the partnership, (if the partnership be proved,) they must be presumed to be given for their joint account as individuals, and not as partners ; and that, inasmuch as the defendant levied on an undivided moiety of the personal property which (as he alleges) Curtis and Barstow owned as tenants in common, and inasmuch as his attachment was made before the plaintiff’s attachment, his levy shall be held to be valid, and' the rule of law which gives a preference to creditors of a partnership, does not apply to tenants in common, so as to give a creditor of them all any preference over a creditor of one of them.

We are then to consider whether the evidence to prove the partnership, and to prove that the notes were given on the partnership account, and the time and manner of executing the agreement of the partnership, and the notes, was legally admitted. And, first, as to the consideration. The evidence introduced proves what was the value received ; and nothing which was proved contradicts or varies the writing.

If it be granted that, as the promisors signed in their individual names and not in the name of the firm, the presumption would be, that it was for an individual and not for a partnership concern, yet the presumption may be rebutted by parol evidence. The parol evidence, that these notes were given for the property applied to the use of the firm, rebuts the supposed presumption that they contracted in their individual capacity. Their legal liabilities upon the notes were precisely the same as if they had signed in the name of their firm.

An execution which should issue against them jointly, might be levied upon their joint as well as upon their several property. And the evidence which was introduced to show that the notes were given by the makers as partners, for ship-timber, &c. which came to their use, was not contradictory, but properly explanatory and consistent with their subjecting themselves in the manner they did, to pay for the property. Then in respect to the evidence of the partnership, it was conclusive.

And as to the time when the papers were executed, it seems not to be doubted, that they take effect from the time when they were delivered. So, in the case of deeds, they take effect not from the date, but from the delivery ; and parol evidence is admissible to prove that the deed was delivered either before or after the date. 1 Phill. Evid. c. 10, § 1, and cases cited. So in a case lately decided in Middlesex, (Hall v.

Tufts, 18 Pick. 455,) it was held, that a note which in a mortgage was described as dated in the year one thousand seventeen hundred and ninety-eight, was intended for the note which was produced, which was dated one thousand seven hundred and ninety-eight. The time when the papers were delivered was proved clearly by parol evidence, and that the note produced was the one referred to in the mortgage, notwithstanding the mistake therein of one thousand years in the date of it.

But it has been urged for the defendants, that he was to look only to his precept, and that the evidence, if good as between the parties, could not be admitted against him. The defendant, we presume, has an indemnity from the party to whom he lends his aid. He acted upon full notice of the plaintiff’s claims. But if he has no indemnity to relieve him, he acts at his own peril. We may regret his imprudence, but cannot wárp the law. He represents the rights of his princi pal, and must fail if those rights are not legally sustained.

We are all of opinion, that the evidence was properly admitted ; and that it proved that the plaintiff’s demand was due from the partnership, and had a legal priority over the claim of the creditor of one of the partners, in whose behalf the defendant acted. The defendant is to be defaulted ; and, according to the agreement of the parties in that event, judgment is to be rendered for the plaintiff in the sum of $ 1051.25 and costs.