Smith v. Mertz

FINCH, P. J.

The plaintiff brought this action to recover the amount of a promissory note for $5,000, with interest, dated April 18, 1921, and signed “Tulsa Motors Co. by Jos. S. Mertz.” The complaint is in the usual form. The defendants Mertz and Miller filed separate an

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swers. The other defendant did not answer. Judgment was entered in favor of the plaintiff against Hertz and Hiller and Hiller has appealed.

The answer of defendant Hiller denies that he was a member of the defendant partnership on April 18, 1921, or at the time his answer was signed; denies that he executed the promissory note sued, on; denies that Hertz “was. ever authorized by this defendant to sign the promissory note”; and alleges “that on April 18, 1921, he was not a copartner of the other defendants named herein, nor a member of said fictitious firm name of Tulsa Hotors Co.; and that he did not authorize the making or delivering of the note described in the plaintiff’s complaint, and that he did not receive any of the consideration therefor as a partner of said defendants, or as a member of said Tulsa Hotors Co., and that he had no knowledge of the making or delivering of said note until the summons was served upon him. ’ ’

The court found “that all of the allegations of the complaint are true; . . . that the defendants herein are co-partners and were on April 18, 1921, copartners doing business under the fictitious firm name and style of Tulsa Hotors Company”; that Hertz was “duly authorized to sign said promissory note for and on behalf of all of the defendants . . . and that the said partnership . . . received the $5,000 loaned by the plaintiff to said defendants; . . . that it is not true that on the 18th day of April, 1921, plaintiff and defendants Joseph S. Hertz and W. W. Gogel entered into an agreement wherein the said Joseph S. Hertz and W. W. Gogel sold to the plaintiff an undivided one-third interest in the business and partnership known as Tulsa Hotors Company for the sum of $5,000. That it is true that $3,000 of said money received from plaintiff by the Tulsa Hotors Company, for said promissory note, was used for the purpose of paying to H. B. Hiller for his one-third interest in said partnership and that the remainder was used for the purpose of said partnership business. ’ ’ The negative findings are responsive to issues raised by the answer of the defendant Hertz.