Randall v. Hunter

McFarland, J. The appellant, W. S. Hunter, and C. W. Gill, were partners, doing a general merchandising business in Petrolia, Humboldt County, under the firm name of Gill & Hunter. While they were thus partners, Gill, on May 25, 1881, made and delivered to the plaintiff, Randall, a partnership promissory note for [256]one thousand dollars, signing to it the firm name, “ Gill & Hunter,” and to recover the balance due upon said note, this action was brought. Gill made default, and Hunter answered, setting up the defense that Gill, to plaintiff’s knowledge, mad's the note without Hunter’s knowledge or consent, for Gill’s individual use and benefit, and not in the business, or for the use of the firm, etc. The jury rendered a verdict for the amount of the balance due on the note, and judgment was entered for that amount. From this judgment, and from an order denying a new trial, Hunter appeals.

Gill was originally the sole owner of the business, stock of goods, etc., and had sold an undivided one half to one 0. W. Long. Long had paid Gill for the one-half interest some fifteen hundred dollars in cash, and had given him his two promissory notes for one thousand dollars each. One of these notes Gill had given to plaintiff Randall as security for money furnished by Randall to Gill. A short time after Long had bought into the business he resold to Gill upon the same terms as those upon which he had bought. The fifteen hundred was repaid to him, and one of the promissory notes redelivered, but the other, being held by Randall, could not be, at that time, redelivered to Long, and Gill agreed to take care of said note, and to protect Long from any liability on it. About the time Long resold to Gill, the defendant Hunter purchased from Gill the one-half interest which Long had held; and within two months afterward Gill took up the note made by Long, and held by plaintiff Randall, by giving to the latter the firm note of Gill & Hunter, upon which this suit was brought.

Now, it was claimed at the trial that it was part of the transaction of the sale from Gill to Hunter, that the firm of Gill & Hunter should pay the indebtedness of Gill to Randall, and that the said firm note sued on was made with the knowledge and consent of Hunter, and that the latter acquiesced in and ratified it. This [257]