Opinion
Department Two
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
W. H. H. Hart, for Appellant.
I. B. L. Brandt, for Respondent.
JUDGES: Hayne, C. Foote, C., and Belcher, C. C., concurred.
OPINION
HAYNE, Judge
This was an action upon two promissory notes alleged to have been made by the firm of O. M. Paris & Co., which was composed of the defendant Paris and one Hutchinson. The court below gave judgment against both defendants for the amount of one of the notes only, and the defendant Paris appeals from this judgment, and from an order denying a new trial.
It is contended that the court erred in refusing to order the sheriff to amend his return to a writ of attachment, which had been issued in the case, so as to show certain facts in relation to the service of the attachment papers. But the attachment papers in no way affected the validity of the judgment or order denying a new trial, and the questions in relation to them cannot be considered on the appeals taken. (Allender v. Fritts , 24 Cal. 447.) It is next contended that the evidence shows that the partner who signed the note had no authority to give a note in the name of O. M. Paris & Co. The facts in relation to this point are, that some time prior to the formation of the said firm, the defendant Hutchinson was doing business for himself under the style of T. R. Hutchinson & Co., and was indebted to W. & J. Steinhart & Co. in a sum of money, for which they held his promissory note, which circumstances were known to the defendant Paris. In this condition of affairs Paris and Hutchinson formed a partnership under the old name of T. R. Hutchinson & Co., and by the articles it was agreed that "said copartnership hereby agrees to and does assume the payment of all the liabilities of T. R. Hutchinson & Co." And the Steinhart note was thereupon entered upon the books of the firm as one of its liabilities. Thereafter the name of the firm was changed to O. M. Paris & Co., without any change in its membership. The old Steinhart note was retired, and a new one given in the new firm name. The learned counsel for the appellant says that "probably Hutchinson would have had the right to execute a note to W. & J. Steinhart & Co. for said debt in the name of T. R. Hutchinson & Co., but certainly not in the name of O. M. Paris & Co." If such a course had been taken, the [22 P. 972] defendants would have certainly been bound; for the payment of the old note had been assumed by the same individuals under a different name. The objection therefore goes merely to the way the note was signed. But the court finds that the giving of the note in the name of the firm of O. M. Paris & Co. was "with the authority and consent of the said defendant, O. M. Paris." And there is evidence to sustain this finding.
The only objection to the judgment is, that by a clerical error it was entered for $ 4.09 too much.
We therefore advise that the judgment be modified, by striking off the sum of $ 4.09, and that as modified it be affirmed, without costs of appeal to the appellant. The Court. -- For the reasons given in the foregoing opinion, the judgment is modified by striking off the sum of $ 4.09, and that as modified it be affirmed without costs of appeal to the appellant.