KIRBY v. McDONALD et al., 70 F. 139

CALDWELL, Circuit. Judge, after stating the facts as above, delivered the opinion of the court. The money was not borrowed by or for the firm or on its credit, and was not used to pay any debt or liability of the firm. It was borrowed by Good to make up his share of the capital in the firm, and was used for that purpose, and he got credit for it accordingly. The appellee had no" knowledge that Good had borrowed the money to make up his share in the capital of the firm; and, as soon as the appellee learned that the appellant claimed that the firm was liable for the money so borrowed by Good, he disputed the claim.

Good could not make the firm liable for money borrowed for his own use without the knowledge or consent of his copartner. The money borrowed to pay the amount Good was to contribute to the capital of the firm was borrowed for his own use, and was his individual transaction, as fully and completely as if he had borrowed it to pay an individual debt due to a third person. He had bound himself to contribute $3,000 capital to the partnership.

If he could bind the partnership for the money borrowed for this purpose without the knowledge or consent of his copartner, then he in fact contributed nothing to the capital of the firm; for, when the borrowed money was repaid, his share of the capital would be exhausted. A conclusive answer to the contention of the appellant is found in the fact that the money was not loaned on the credit of the firm.

In his answer, the appellant says.that, when the money was borrowed, Good said: “He did not like to take the responsibility of signing said firm name; ⅜ ⅜ ⅝ that he would prefer to execute a note in his own name; and that his wife, .Annie Good, and O. G. Hawk, the said manager, would also sign said note as sureties therefor.” The appellant agreed to this, and the note was made accordingly, and several times renewed. When the appellant became apprehensive that he would lose his debt, lie induced Good to execute a note therefor in the partnership name, but this did not make it a partnership debt.

The fact remained that the money had been borrowed by Good for his own use, and upon his own credit and that of his sureties. No arrangement or agreement between Good and the appellant could convert this into a partnership debt without the consent of the appellee. The conclusion reached on this point makes it unnecessary to consider any of the other questions raised in the case, tiip decree of the circuit court is affirmed.