
    Timothy Woodford and Wife, vs. Canfield Dorwin.
    Addison,
    January, 1830.
    A promissory note cannot be recovered of the maker, tmless diere has been a delivery of it to the pajee.
    But the law will presume a delivery, unless something appears which does away such presumption.
    Where one of several partners, during the existence of the partnership, executed a note in the name of the firm tor a partnership debt, but did not deliver it to the payee till after the dissolution ofthe'partnership^ was held'that such subsequent delivery did not bmd the partnership.
    A note takes effect from its delivery, and not from its date»
    This was an action of assumpsit brought against Samuel Hurl-hurt, Canfield Dorwin, and Thomas M. Dorwin, late partners under the firm of Hurlburt & Dorwins, on a promissory note made payable to Jerusha Woodford, bearing date December 1st, 1820,(about three months after her intermarriage with said Timothy) for $281,48, made payable one year from date, with interest, and signed by said Samuel Hurlburt by the name and firm of Hurlburt & Dorwins, Service of the writ was made only on Canfield Dorwin. Plea, non assumpsit, and actio non accrevit infra seos anuos.
    
    On the trial iu the county court, December term, 1829, Williams, J. presiding, the plaintiffs introduced evidence tending to prove,that the firm- of Hurlburt & Dorwins existed one year, or more, and was dissolved on the 1st day of April, 1821. The plaintiffs also introduced, as evidence, two letters, written by said Hurlburt, one directed to John McNeil, the son-in-law of the said Jerusha, dated May 9, 1828, the other supposed to have been directed to one Charles McNeil, also' a son-in-law of the said Jerusha, dated December 15, 1828, tending to prove a consideration for said note-, value received not having been expressed therein ; that money to- the amount of the note, and for which it was given, belonged to said Jerusha before her marriage with said Timothy, and was loaned to said firm for her use; — also tending to prove, that after the dissolution of the firm of Hurlburt & Donvins, and within six years next previous to the commencement of this action, an acknowledgement and promise was made, on the part of the said Samuel, one of the partners, that the note was due and that he would secure the payment of it. The defendant objected to the letters as evidence; — which objection was overruled by thecourt.
    The defendant introduced evidence tending to prove that the said Samuel, before and at the time of the marriage of the plaintiffs, was agent of said Jerwsha, and had control of her monies: — - That some time previous to May, 1828, the said Samuel was unfortunate in his business, and left Hinesbu-rgh where he had previously resided, and went to reside in the state of New- York; that he left with his brother, William Hurlburt, a box, said to contain his papers, nailed up, on the outside of which was written, Samuel Hurlburt1 s private papers, not to be opened ; left with William Hurlburt — That in the latter part of May, 1828, said William, being absent from home, was me^by John McNeil, who told him he wished to procure a note, which was in the box, belonging to the said Jerusha : — That he, William Hurlburt, wrote to bis sister to shew McJYeil the box of papers: — That when William Hurlburt returned home, he found McNeil, and one William Lyman, the son of the said Jerusha, at his house, who said they had examined the box, and found the note, which was then examined by the said William Hurlburt, and was the same, on which this action is brought; also a note of about fifty dollars given by McNeil to the said Jerusha ; also a note given by Samuel Hurlburt to the said Jerusha for about one hundred and three dollars, on which were sundry endorsements; and also a memorandum of an account, in favor of Samuel Hurlburt against the said Jerusha, of various charges, and mostly for expenses incurred in the maintenance of the said Jerusha1 s children by the said Samuel, amounting to about one hundred and fifty dollars ;— that the said notes and memorandum of an account were found with other papers of Samuel Hurlburt, all which were inclosed in an envelope, sealed up, on which was written, “ Samuel Hurl-burl’s papers, not to be brokenand that McNeil and Lyman then and there gave their receipt to William HurlburU and took them away. The evidence being closed, the court de-cited that) from the foregoing facts, the contract with the said firm was not completed for want of delivery of the said note 5 and that, the note was not delivered to the plaintiffs by the said Hurlburt asher agent until after the dissolution of the partnership, but remained among his private papers until after he left this state, he could not then, by giving up the note to the plaintiffs, as aforesaid, make a contract binding upon the defendant without his consent. No other evidence being offered to prove a delivery of the note, the court charged the jury, that the defendant was entitled to a verdict; and thereupon a verdict was found for the defendant.
    The plaintiffs excepted to the opinion of the court, and a bill of exceptions being allowed, stating the foregoing facts, the cause Was removed to this Court on a motion for a new trial.
    
      Mr. Hawley, for the plaintiffs. — The admission of Hurlburt, One of the firm of Hurlburt & Dorwins, after the dissolution of the partnership, that, during the partnership, he, as the agent of Mrs. Woodford, loaned to the firm the sum in question, and took a note therefor, is binding on the other partners. Wood et al. assignees oj Hussey et al. vs. Braddick, 1 Taunt. 104. — Peake’s JY. P. C. 205. — 1 Swift’s Dig. 761. — Nichols vs. Dowding, 1 Starlcie’s R. 81. Also that the acknowledgement of Hurlburt, one of the firm, and within six years next previous to the commencement of the action, that the note was due, takes the case out of the statute of limitations. Smith vs. Ludlow, 6 Johns. Rep. 267. — 2 Stark. Ev. 897. — Perham vs. Rdynal et al. 9 Com. Law Rep. 413. — Holmes vs. Green, 1 Stark. R. 479.— Holiday vs. Ward, 3 Camp. 568. — Baillie et al. vs. Ld. In-chiquin, 1 Esp. Cases, 435.— Clark vs. Bradshaw, 3 Esp. C. 155-7. — ■Whitcomb vs. Whiting, Doug. 652. — 4 Term. R. 516.
    The execution of the note during the partnership, and taken by Hurlburt, should be regarded as a delivery of the note to Hurlburt, as the agent of the plaintiffs, he standing as a third person, by reason of his agency, between the firm and the plaintiffs. Bolton vs. Puller, 1 B. & P. 546-7. — ‘Gill et al. vs. Kughn, 6 Sergt. & Rawle, 333.
    The agency of Hurlburt not being withdrawn, and the note being found, by Hurlburt’s direction, in a box containing Hurl-burt’s private papers, although the plaintiffs might not have known of the existence of the note when it was made, yet, their subsequent assent to the transaction, by receiving the note, makes the note valid, and relates back to the original delivery thereof to their agent. Ruggles vs. Lawson et al. 13 Johns. R. 285.— Belden vs. Carter, 4 Day, 66. — Hatch vs.Hatch,9 Mass. R. 307—12 do. 456. — Buckman vs. Frost, 18 Johns. R. 544.
    
      Mr. Phelps, for the defendant. — 1. The letters nor admissions of S. Hurlburt were not competent evidence to charge the defendant. It is to be observed that the vote in question was actually executed by Hurlburt for money which he had before had in his hands, and for which he was responsible to the plaintiffs, and the object of his admissions was, by proving a consideration for the note, to charge the partnership with the debt, and this long after the partnership had been dissolved. Although when a partnership is proved, the admission of one partner is, as a general rule, evidence against all, yet a person prima facie liable himself is not competent to prove a partnership which shifts the liability : nor, a partnership being proved, is he competent to prove that a debt, prima facie his separate debt, is the debt of the partnership. The letters refer to his accountability for the money of the plaintiffs, and the statement as to the loan of it to the defendant, is made in discharge of himself. Mont, on Part. 94, 97.— Walden vs. Shelburn, 15 John. 409.— Gibbons vs. Wilcox, 2 StarJc. R. 43. — Bacon vs. Bown, 4 Taunt. 782.' — Puriance vs. Dogden, 3 Serg. Sf R. 402.— Whitney et al. vs. Sterling et al. 14 John. 215. — 2 Stark. Ev. 44. — The case of Wood vs. Braddich, 1 Taunt. 104, is not analagous, as there was in that case no previous separate liability of Cox to be transferred to the partnership. The distinction is between those cases where the partnership is liable, if any one, and cases where the question is whether the witness in his separate capacity, or the parties are liable ?
    2. The note never was delivered to the plaintiffs. It was placed among Hurlburfs private papers under circumstances which show that it was not to be delivered — was taken away in the manner stated, and without any authority from Hurlburt or the defendant.
    3. The note, at all events, was never delivered until May, 1828, and if it be considered to have been then delivered by Hurlburt, it is objected that, the partnership having been dissolved as early as 1821, he had then no authority to put the note in circulation, nor could he bind the firm in doing so. 1 Taunt, 104.— Watson on Partnership, 209. — Kilgour vs. Frdlyson, 1 H. Blue. 155. — ~ Abel-vs. Sutton, 3 Esp. R. 108. — As the note was signed by Hurlburt,and without the concurrence or knowledge of the copartners, there is no ground for saying that he is to be considered as holding the note as the agent of the plaintiffs.
    4. The claim, at all events, is barred by the statute of limitations. Hurlburt’s letters will not take it out of the statute : — First, for the reasons stated. If Hurlbuit had no interest in this case, but a common interest with the defendant, there would be some reason why his acknowledgement should affect the other defendants. Secondly, his promises do not refer to the liability of the partnership, but to his separate accountability. His promise is not that the note should be paid; but that he would settle for the monies in his hands. In order that the promises should attach to the note, they should not only be made with reference to it, but should be explicit and unequivocal. Holmes vs. Green, 1 Stark. R. 43S. — Whitcomb vs. Whitney, Doug. 629.
    As to Hurlburt, the statute would not run until he should be called upon to account. But it is otherwise as to the defendant. If there is a recovery on this note it clears him, as far as the amount recovered, from his responsibility to the plaintiffs. Shall his acknowledgements then bind the defendant, and thus keep the claim alive for his own benefit ?
    5. This action is misconceived. Upon the marriage the money became the property of the husband, and the suit should have been brought in his name alone, and this, although the note was given in her name, as it was given during coverture. Chit. VI. 60 etseq.— Com. Dig. Baron & Feme, W. & X. — 1 Salk. 114.— Cro. Car. 77, 205.
   The opinion of the Court was delivered by

Paddock, J.

It appears that in the first of the year, 1820, Samuel Hurlburt, Canfield Donvin, and T. M. Dorwin, formed a co-partnership in trade, which continued until the first of April, 1821, whan they dissolved and settled up their concerns -as between themselves. Hurlburt left the country previous to 1828, but at what particular time, does not appear. When he left he deposited his papers in a box, and made it fast. In this box, it is said, the note in question was deposited. The 9th of May, 1828, Hurlburt addressed a letter to J. McNeil, in which it appears that Hurlburt and the Dorwins had money of Jerusha Woodford, (one of the plaintiffs,) and that the note in question would be found in the box. The two letters which the plaintiffs contend contain evidence of a new promise, or acknowledgement of the debt, are ambiguous: it does not distinctly appear that the money,which he says was borrowed of Mrs. Woodford, formed tiie consideration for the note, though it may be inferred. first he says, “ William, has written me that Dorwins refuse to do any thing about the note signed by them with me to Mrs. Wood-ford. I hare no distinct recollection about my settlement with Dorwins, &c.” Again, “ I had none of the ‡280 note you went after, which is in with your note in a box nailed up.” He then gives assurances that he will secure the plaintiffs and pay all he owes them shortly. In the other of December 15, Í828, he says, “ some time or other Messrs. C. & T. M. Dorwins and I, had some money of Mother Woodford, for our company’s use, and she not wanting it, we kept it until we dissolved ; and he says I was to pay that particular debt, and he the others.” At the trial before the county court, the jury were instructed, that there could be no recovery on the note, as it did not appear to have been delivered by the firm to the plaintiffs or any other one, without which the contract was not complete.

It is an essential ingredient in every contract entered into by writing, that it be delivered by the party, obligating himself, to some one who has a right to control it; the delivery, being the evidence of the assent of the promissor, and the reception by the promissee, consummates the contract. And without a delivery, the party is not bound by the writing. It is not, however, necessary that the holder of a bill, note or other instrument, should prove the delivery ; for the law will presume a delivery, unless something should be made to- appear which counteracts such presumption. Churchill vs. Gardner, 7 T. R. 596.—Smith vs. M’Clure, 5 East. 476.—Chit. on Bills, 322.—3 Chit. Pl. 1 & 2.

There is nothing to support the suggestion that Hurlburt acted as the agent of Mrs. Woodford : there is no. expression in the letters from which such a conclusion could be drawn. The bill of exceptions states that there was some evidence introduced shewing that Hurlburt acted as agent to Mrs. Woodford, before and at the time of her marriage, which was three months before the date of the note. Supposing he did, the marriage put an end to his authority to act, and we hear.of no subsequent appointment by her or Woodford, nor act of his countenancing such a surmise.

It remains to be considered, whether, after the dissolution of a partnership, one of the number can bind the others to a contract vvhich did not exist at the time of the dissolution : and it is nothing short of that which the plaintiffs ask for in this case. It is not to sanction Hurlburt’s doing an act which affects partnership property; nor yet to explain a partnership transaction ; nor his admission of an unpaid debt against the firm : but it is to permit him, seven years after the connection is dissolved, to do a substantive act, by which a new obligation and new liabilities are brought upon his late partners, and to pronounce it legal. Such an act, if sanctioned, would be aiming a most deadly blow at all mercantile associations, which by common consent are considered highly beneficial to the interest and prosperity of our country. Partners are already sufficiently exposed from the mismanagement and frequently improper conduct of some of their number. But put it in the power of a dishonest partner, and perhaps a dissatisfied one, after the close of the concern, to put the company paper in circulation which might have been executed before the dissolution, or ante dated, and he would be sure to bring rtiin and destruction upon the whole number. There can be no difference between delivering a note purporting to have been executed by the firm to the payee, or endorsing a note in the name of the firm, or delivering one, which had been previously endorsed, to the endorsee.— And upon this point Lord Kenyon remarks, (Abel vs. Sutton, 3 Esp. R. 108, cited by counsel) “If a fair bill existed at the time of the partnership, but is not put into circulation until after the dissolution, all the partners must join in making it negotiable. The moment a partnership ceases, the partners become distinct persons, and if they send securities into the world which did not belong to the partnership, all must join in doing so. I even doubt very much, if an endorsement was actually made orva bill or note before the dissolution, but not sent into the world until afterwards, that such endorsement would be valid ; and to contend that this liability to be bound by the act of a partner after the dissolution, was in his mind a most monstrous proposition.” And the same principle was maintained in Kilgour vs. Finlyson, 1 H. B. 155.—In Lansing vs. Gaine & Ten Eyck (2 Johns, 300) being a case precisely in point, Ch. J. Kent says, “ The date of the notes then becomes immaterial, as they were valid only from their delivery, and, unless the contrary be shown, the presumption will be that they were actually drawn,and were ante-dated by mistake or design. To all legal purposes, the notes are to be considered as made or drawn when they were delivered.” “ The fact then that the notes were issued by Ten Eyck after the partnership was dissolved, was sufficient to exempt Gaine from being bound by the tsotes, even if they had been given for a partnership debt.” And of this opinion were the whole court.

N. Hawley, for plaintiffs.

S. S. Phelps, for defendant.

The fact of Hurlburt’s retaining the note in his possession for seven years carries a suspicion' with it. If the amount was actually due to Mrs. Woodford, is it reasonable to conclude that it would not have been called for ? and if called for, it is incredible that Hurlburt would not have delivered over the note, if it had been executed for such a length of time, and in his possession, for that purpose. The conviction seems to force itself upon the mind that it was either made for a mere memorandum, if written at the date, or that it was ante dated for the use it was afterwards put to. Be that as it may, it will not vary the decision, as the court are satisfied that the note ought to take effect from the delivery ; and as the firm had then long been dissolved, it had no binding effect whatever upon this defendant. Therefore, the judgement of the county court must be affirmed.

Judgement affirmed.  