First National Bank v. Simmons

Vanclief, C. — Action on a promissory note (so-called), of which the following is a copy:—

“$1,000.00. San Luis Obispo, Cal., March 29, 1890.

“ For value received I promise to pay to the order of the First National Bank of San Luis Obispo, in gold coin of the U. S., any and all sums of money which the said First National Bank of San Luis Obispo may loan or advance to me on my account to the amount of one thousand dollars, with interest on such loans and advances from the time the same are made, respectively, at the rate of ten per cent per annum, payable monthly, said payment to be made by one day after date, and this obligation shall always apply to the balance of my indebtedness with said bank. L. H. Simmons, for Simmons & Hall.

“No. 1172.”

The complaint alleges that the defendants, as copartners, made the note on the day of its date; that plaintiff then and thereafter “loaned and advanced to defendants, as such co-partners as aforesaid, the sum of $1,000, and the same was used by said defendants as such partners, in and about the business of said partnership”; and that only $300.35 has been paid thereon. The complaint is not verified.

The defendant, E. M. Hall, denied each and every allegation of the complaint; and specifically denied that any partnership ever existed between him and Simmons.

At the close of the evidence on the part of the plaintiff, the defendant Hall moved for a nonsuit as to him, on the ground that the evidence did not tend to prove that he was one of the makers of the note, or had ever promised to pay the same. ■The court granted the motion, and judgment of nonsuit was entered.in favor of the defendant Hall, from which plaintiff, brings this appeal on a bill of exceptions.

The evidence on the part of the plaintiff, as stated in the bill of exceptions, shows that on August 22, 1889, a written agreement of partnership was executed between Simmons and one [289]Cliarles E. Hall, the son of the defendant, E. M. Hall, by the terms of which Cliarles F. Hall purchased from Simmons ail undivided half of the stock in trade of a hardware business theretofore carried on by Simmons at the town of San Luis Obispo, for the sum of $2,950; that after the payment of this sum and transfer of one half of said stock the parties to the agreement should be partners in the business under the firm name of “Simmons & Hall.” It appears “that the defendant,