
    The Exchange National Bank of Olean, Resp’t, v. Charles D. Marshall, Imp’ld, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    1. Trial—Request to direct verdict.
    At the close of the evidence plaintiff asked the court to direct a verdict in his favor, and defendant asked for a dismissal. The court directed a verdict for plaintiff. Defendant excepted, and asked to go to the jury, but refused to specify any question of fact which he wished submitted, and, Anally, put it in the form of a request to charge. Held, that his right to go to to the jury was waived, and that the direction of a verdict was proper.
    2. Partnership—Knowledge of partner.
    The knowledge of one partner as to what the other was doing within the scope of their business, or as to what private agreement was made between them, cannot affect the rights of third persons dealing wiih the firm.
    Appeal by the defendant, Marshall, from an order denying a motion for a new trial in an action tried at the Cattaraugus circuit before the court and a jury.
    
      Spencer Clinton (George Clinton, of counsel), for app’lt; J. B. & M. B. Jewell, for resp’t
   Corlett, J.

In April, 1882, the defendants and Henry A. Eichmond, of the city of Buffalo, became partners for the purpose of engaging in the lumber business in the state of Pennsylvania. Eichmond sold his interest in the firm before any business was transacted. Briggs was the business manager of the firm, and nearly all transactions were in his name. The company’s office was in Buffalo, where the books were kept.

In doing business three notes were made.

“500.00. Buffalo, N. Y., August 28, 1888.
“ Three months after date I promise to pay to the order of S. E. Farnsworth, five hundred dollars, at Bank of Buffalo, Buffalo, FT. Y., value received.
“Gr. D. Briggs.”

Two other notes were made in substantially the same form: One for $600, dated September 10, 1888, due in three months, signed as the first The other for $1,000, dated September 17, 1888, due in three months and signed by Briggs in the same way. All of them were claimed by the plaintiff "to be given in the business of the firm, and they were transferred before due to the plaintiff.

The firm in the course of its business in lumbering made an oral agreement with Farnsworth, the payee mentioned in the notes, to manufacture the timber into lumber on the defendant’s land, and to build a tram road or railway for the purposes of the business. It was claimed on the part of the plaintiff that the notes were given to Farnsworth for work and labor performed on his contract It also appeared that Farnsworth assigned to the plaintiff the accounts for labor represented by the notes, as well as the notes.

This action is brought to recover the amount. The complaint alleges among other thimgs, that the firm name was Gr. D. Briggs, and that the business of the firm was conducted in that name. The answer admits the partnership and the nature of the business followed by the firm, but denies that Gf. D. Briggs was the firm name, or that the notes were obligations of the firm, and also the firm’s indebtedness to Farnsworth. The cause was tried in September, 1889. The plaintiff at the close of his evidence offered to surrender the notes to the defendant The defendant’s counsel in replying to this offer stated: “ You then claim on the assignment of the consideration.” The plaintiff’s counsel replied in substance that he claimed on the notes and assignment. The defendant’s counsel moved for a dismissal of the complaint on the ground that the evidence fails to establish the cause of action that the plaintiff has elected to rest his case upon. At the close of the evidence the plaintiff’s counsel stated that he saw no question of fact for the jury, and asked the court to direct a verdict for the plaintiff. The defendant’s counsel asked the court to dismiss the complaint _ on the evidence and on the ground above stated. The trial justice said in substance, that there was no question of fact for the jury, and that the plaintiff’s case was established to the extent necessary to entitle a recovery. The justice proceeded to show the reasons for so concluding at some length, and directed a verdict for the plaintiff. The defendant’s counsel excepted to the motion to dismiss the complaint and the direction of a verdict, and requested to go to the jury.

The court asked the counsel to state any question of fact which ought to be submitted to the jury. The counsel declined to specify any question which the jury ought to pass upon. The court repeated the question, and the counsel in reply said that he should ask the court to charge that if Farnsworth knew that this paper was intended to be the personal paper of Briggs, and was satisfied that there was no indebtedness to Farnsworth, that the plaintiff could not recover; but he did not ask to go to the jury, or indicate any question of fact which he desired to have the jury pass upon.

It is obvious from the above statement that the trial justice was right in directing a verdict. The counsel on both sides assumed that there were no questions for the jury to pass upon; the plaintiff’s counsel by asking the direction of a verdict; the defendant’s counsel by asking a dismissal of the complaint The counsel also stated that he wished to be allowed to go to the jury ; when requested by the court to indicate some question he wished the jury to pass upon he declined, and finally stated that he would put it in the form of a request to charge. There was nothing before the court to charge upon, and the defendant’s counsel so assumed because the court made no ruling upon that suggestion, nor did the defendant’s counsel ask any or take an exception. All that occurred shows that neither party desired any questions to be passed upon by the jury. E the learned counsel for the defendant had asked to go to the jury on the question whether the notes were given in consideration of a debt due by the firm to Farnsworth, or whether the firm was indebted to Farnsworth to the amount of the notes, or upon either of those questions, he would have undoubtedly been allowed to do so by the trial court, if there was any conflict in the evidence as to those questions or either. But by refusing to specify any question of fact which he wished submitted, in view of what occurred, he abandoned all claim on that subject.

It is a familiar rule that a general objection or request is unavailing, if by calling specific attention to the point it might have_ been obviated. Quinby v. Strauss, 90 N. Y., 664; Leggett v. Hyde, 58 id., 272 ; Collins v. Burns, 63 id., 1.

In Koehler v. Adler, 78 N. Y., 287, 290, the counsel asked to go to the jury on a specific question.

The rulings of the trial justice on the subject of evidence to which exception was taken, were correct.

The knowledge of one partner as to what the other was doing within the scope of their business, or as to what private agreement was made between them, cannot affect the rights of third persons dealing with the firm.

The order must be affirmed.

Dwight, P. J., and Macomber, J., concur.  