April Term, 1851
N. Hill, Jr. for appellant.
H. Denio, for respondent.
The following facts, among others, are stated in the record as the result of the evidence. "The plaintiff let Thomas D. Dole have three thousand dollars, less the discount, upon two printed notes of fifteen hundred dollars each, signed by said Dole as maker, and indorsed by the defendant Benjamin Dole, payable at the Kirkland Bank; one in two, the other in three months. The notes were presented for the purpose of procuring the discount."
This is, in effect, finding that the plaintiff lent or advanced three thousand dollars to the maker, and received the notes as evidence of the loan, and as security for its repayment. If this is a correct view of the facts presented by the record, the offer made at the trial by the defendant to prove, first: "That the plaintiff, at the time of the discount, agreed that the notes should be repaid out of the effects of the copartnership;" and secondly: "That if the assets of the copartnership did not pay them, then that the plaintiff would pay three-fourths of the balance, and the maker one-fourth," were properly rejected. The written undertaking of the maker was to pay the full amount of the notes absolutely. The offers were to show him contingently liable for one-quarter only, by proof of an arrangement contemporaneous with the execution and delivery of the notes. This was not merely a contradiction of the only written contract between the parties, but the substitution by parol evidence of a distinct and independent agreement. ( Bank of U.S. v. Dana, 6 Peters, 59; 17 Wend. 190; Cowen Hill's Notes, 1460.)
The case then is briefly this: The plaintiff upon the application of T.D. Dole, his former partner, advanced to him three thousand dollars, with the understanding, that it was to be applied upon debts, for which they were jointly liable; upon the express written agreement of the latter, and the defendant as his surety, that the money should be repaid, one-half in two and the residue in three months; the assets of the old firm, the primary fund for the payment of its liabilities, being in the hands and under the control of the co-partner receiving the money. The contract was valid, and an action may be sustained upon it. It is true, if the plaintiff had paid demands against the firm, of which he and the maker of the note were members, he could not have recovered at law against his copartner, for he must then sue upon an implied promise, and until an account of the copartnership was taken, it could not be ascertained whether the plaintiff had or had not paid more than his proportion. ( Colyer, Perkins' ed. § 264; 19 Wend. 424.) But the plaintiff, although liable to the creditors of the firm, was under no legal or moral obligation to advance money to his former partner. He owed him nothing. He had therefore a right to prescribe the conditions upon which he would part with the money, and to exact and enforce the securities given as the means of obtaining it. The authorities are full to this point. If one partner gives the other his promissory note, or separate acceptance, for value received, on the partnership account, an action will lie on such note or bill. ( Colyer, supra, § 269; 1 Anstr. 50.) In Van Ness v. Forest, (8 Cranch, 30,) it was held that a promissory note, given by one partner to another for the use of the copartnership, will maintain an action in the name of the promisee against the maker, notwithstanding the connection, and that the money when recovered would belong to the copartnership.
Here, however, the money placed in the hands of T.D. Dole was the money of the plaintiff, and when collected would belong to him. It is said that the old firm were indebted eighteen hundred or two thousand dollars, more than their estimated liabilities in February, 1849. But when this was ascertained is not stated; nor does it appear that it was communicated to, or known by the plaintiff, prior to the making and delivery of the notes.
It is not the business of this court to draw conclusions of fact from evidence. The report is in the nature of a special verdict. (24 Wend. 19.) I do not perceive that if the plaintiff was fully apprized of the condition of the former copartnership, that it could have any influence upon our decision. But it is enough that no such fact is found, and we can not assume its existence. I think that the judgment of the supreme court should be affirmed.