
    Heroy, Struthers & Co., Plaintiffs and Respondents, v. Van Pelt & Smith, Defendants and Appellants.
    1. Where a firm has bought goods and is subsequently dissolved, and a new firm is formed composed of one of the former firm and of a third person, but under the same firm name; and subsequently a note in the firm’s name is given by the partner who was a member of both firms, to a vendor of goods to the old firm, and such note is not paid when due; the vendor may recover, in an action for goods sold and delivered, of the persons to whom they were sold; if it appear that when he took such note he had no knowledge or notice that it was not the note of the firm composed of the individuals to whom the goods were sold.
    2. “Was this note the note of the old firm or the new firm? ” is an improper question to be put to a witness on the trial of an action for the goods so sold.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 15, 1858;
    decided, January 15, 1859.
    This is an appeal by the defendant, Smith, from an order denying a motion made by him on a case (containing exceptions) for a new trial. The action was tried before Mr. Justice Pierrepowt and a jury, on the 22d of June, 1858.
    The action was brought by James H. Heroy, Joseph Struthers and David J. Mariner, as partners, under the firm name of Heroy, Struthers & Co., against Henry Van Pelt and Nicholas H. Smith, as partners, under the firm name of “ Van Pelt & Smith,” to recover for goods (consisting of glass) sold and delivered by the plaintiffs to the defendants, between the 16th and 31st of July, 1857, amounting to $635.
    
      Nicholas H. Smith alone answered the complaint, and set up as a defense that he and Van Pelt dissolved on the 15th of September, 1857; and that immediately thereafter, and on or about the 15th of September, 1857, Van Pelt formed a partnership with one James B. Smith, and continued business under the firm name of “Van Pelt & Smith;” and that the plaintiffs, on the 9th of October, 1857, took a note of the new firm, dated the 25th of September, 1857, for the amount of their claim, at four months, “ in full payment and satisfaction of the claim of the plaintiffs, upon the original firm of Van Pelt & Smith.”
    
      At the trial, Joseph Struthers, Nicholas E. Smith, Heroy, Van Pelt, and James H. Heroy, were examined as witnesses.
    It was proved that the plaintiffs took a note, on the 9th of October, 1857, dated the 25th of September, 1857, signed “Van Pelt & Smith,” for $635, at four months, and gave a receipt, reading thus:
    “New York,.Oct. 9,1857.
    “Received from Van Pelt & Smith their note, dated Sept. 25, ’57, four months, for six hundred and thirty-five TyV dollars, in full for bill of glass to date.
    “ $635.00. Heroy, Struthers & Co.”
    The testimony of Struthers & Heroy tended to show that neither of them knew, or had reason to suspect, when the note was taken, that N. E. Smith had ceased to be one of the firm of “Van Pelt & Smith,” or that James B. Smith, had become a member of it. The testimony of N. E. Smith and of Van Pelt, on the other hand, tended to show that Heroy and Struthers both knew of the change in the firm of Van Pelt & Smith, and took the note with full knowledge of it.
    Henry Van Pelt, who was offered as a witness for the defendant, after testifying to the circumstances under which, as he represented, the note of the 25th of September, 1857, was given; the time when it was given; as to the dissolution of the firm of Van Pelt & Smith, and as to the formation of the new firm of that name; and as to the plaintiff’s knowledge of those facts when they took the note, was asked this question:
    Q. “Was this note the note of the old firm, or of the new firm ?”
    The plaintiffs objected to the question, the objection was sustained and the defendant excepted.
    When the evidence was closed, the defendant requested the Court to charge the jury, that the defendant was entitled to a verdict. The Court refused to so charge, and the defendant excepted.
    The Court “ charged the jury that if they believed from the evidence that neither of the plaintiffs knew or had notice that the note referred to was the note of the new firm when they took it, that then the plaintiffs were entitled to recover.”
    Ho exception was taken to the charge.
    The jury rendered a verdict for the plaintiffs for the amount claimed. The defendant made a case containing the evidence and the foregoing exceptions, and moved thereon at Special Term for a hew trial, which motion was denied, and from the order denying it, the defendant Smith, appealed to the General Term.
    The plaintiff’s in their complaint, alleged that such note had been given and taken; that it was given and taken as being the note of the old firm, and therein offered to surrender it at the trial, and on the trial the note was produced at the request of the defendant.
    
      William Stanley, for the appellant, (the defendant Smith.)
    
      W. W. Niles, for the respondents, (the plaintiffs.)
   Moncrief, J.

It is insisted that the Judge erred, at the trial, in refusing to allow the question:

“Was this note the note of the old firm or of the new firm?”

Some testimony had been given tending to show the circumstances under which the note was taken by the plaintiffs; whether it was the note of the old firm or of the new firm, and perhaps enough to show by which of the two firms it was in fact made. At all events, sufficient evidence had been adduced to make it proper to submit this question to the jury. The witness was asked, in effect, to state a fact which it was the province of the jury to determine, if the evidence can be regarded as conflicting. If it cannot be regarded as conflicting, then he was asked to state a conclusion of law.

The ruling of the Court was correct.

The fact that the note was made by the new firm was assumed by the Court in the charge to the jury.

The defendant also urged that the Court improperly refused to charge the jury, the evidence being closed, “ that the defendant was entitled to a verdict."

The issues made by the pleadings, presented the questions, whether the note delivered to the plaintiffs was known by them to be the note of the new firm, and whether it was taken by them in payment and satisfaction of the claim in suit. Much testimony had been introduced in reference to these questions, and the jury of right alone could determine them. The case was not of a character to be withdrawn from the consideration of the jury.

The Court properly submitted the whole case and its issues to the jury. The charge was “that if they believed, from the evidence, that neither of the plaintiffs knew or had notice that the note referred to was the note of the new firm when they took it, that then the plaintiffs were entitled to a verdict.”

No exceptions were taken to the charge of the Judge, nor was any request made to submit any matter or proposition to the jury. The defendant therefore cannot complain of the charge.

The jury found a verdict for the plaintiffs.

Upon a careful review of the whole case it cannot be said that the verdict is not well sustained by the evidence. The finding, clearly, is not against the weight of evidence.

The order denying a new trial should be affirmed, with costs.

Hoffman, J.

There was no exception to the charge. The acceptance of a note of the new firm for a debt of the old firm may, under certain circumstances, operate as a discharge; but if the creditor took a note of new parties dealing under the same firm name, from one of them who was his original debtor, and with the concurrence of the other member of the old firm no discharge of the obligation of the latter would be produced. The whole case turns upon the question whether the plaintiffs did not expect to get, and suppose they had got, the note of the old firm; and whether the present defendant, Smith, did not sanction, by his acts, this supposition. This question was fairly put to the jury, and they have answered it in the plaintiffs’ favor.

The question whether the note given, was the note of the old or of the new firm, was a complex question of fact and law, not to be put to a witness.

The order denying a new trial must be affirmed, with costs.

Pierrefont, J., concurred in the opinion that the order should be affirmed.

Order affirmed.  