
    Union National Bank of Rahway, N. J., appellant, v. Howard M. Underhill, impleaded, etc., respondents.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    
      1. Partnerships—Liability op firm on partnership note given in INDIVIDUAL TRANSACTION OF PARTNER.
    Cheney, one of the defendants, in order to persande plaintiff to cash his personal check, stated to the president of the plaintiff bank: “ My partner lias, or should have, the money for this to-day; but he has not got it or cannot get it, and we want this amount.” Held, that this did not, under the ■circumstances, authorize an inference that he was procuring the money for the firm or in its business; that when one partner has a transaction with a third person, which is neither apparently nor really within the scope of the partnership business, the partnership is not bound by his declarations or •acts in the transaction.
    2. Same—Evidence.
    Declarations were sought to be proved which were made when Cheney was' engaged in a transaction, both apparently and really, without the scope of the partnership business. Held, incompetent and immaterial.
    Appeal from general term, supreme court, first department, affirming judgment for defendant.
    
      Robert S. Green, for appellant, Union National Bank of Rahway, N. J.
    
      Hamilton Odell, for respondent, Howard M. Underhill, impleaded, etc.
    
      
       Affirming 33 Hun, 660 mem.
      
    
   Earl, J.

The plaintiff commenced this action against "the defendants, Cheney and Underhill, to recover against them upon three promissory notes, dated July 27, 1877, payable to the order of B. A. Vail, and made by Jesse ;S. Cheney & Co., a firm composed of the two defendants. The three notes amounted to about $5,700, and were, at or about their date, indorsed by Vail, and delivered to the plaintiff. The defendant Underhill alone interposed an answer, in which he alleges that these notes were made by Cheney without his knowledge or consent, and delivered to the bank in payment of Cheney’s individual debt, and that the plaintiff knew this. After hearing the evidence, the ■ court sustained Underhill’s defense, and directed a verdict in his favor, and the main question for our determination is whether there was any evidence which required the submission of the case to the jury.

We think it was clearly established that these notes were made by Cheney in the name of the firm, without the knowledge or consent of his partner, and they wore delivered to plaintiff for the purpose of paying the individual debt of Cheney; that the plaintiff knew that Cheney was using his partnership paper to pay his individual debt, and it was bound to know that he had no right to use it for that purpose without the consent of his partner; and was ■chargeable with knowledge that the notes were wrongfully made and issued. Each member of a firm is the general agent of the firm in relation to all the business of the firm, and can bind the firm in what he says and does in such business; but when one partner has a transaction with a third person which is neither apparently nor really within the scope of the partnership business, the partnership is not bound by his declarations or acts in the transaction. He cannot, by his declarations, make that a partnership transaction which does not appear to be such, and which is apparently and really an individual transaction. In such a case the third person has notice that the transaction is outside of the partnership business, and he cannot rely upon the partnership credit. Byles, Bills, (7th ed.) 48; Pars. Part (2d ed.) 116; Rogers v. Batchelor, 12 Pet., 221; Mecutchen v. Kennady, 27 N. J. Law, 230; Wilson v. Williams, 14 Wend., 146; Thorn v. Smith, 21 Wend., 365; Kemeys v. Kichards, 11 Barb,, 312; Elliott v. Dudley, 19 Barb., 236; Farmers’ and Mechanics’ Bank v. Butchers’ and Drovers’ Bank, 16 N. Y., 125.

In Byles on Bills it is said: “The taking a joint security for a separate debt raises a presumption that the creditors who took it knew that it was given without the concurrence of the other partner.”

In Parsons on Partnership it is said that “whenever a party receives from any partner, in payment for a debt due from that partner only, whether the debt be created at the time, or before existing, or by way of settlement of, or security for, a debt, or indebtedness, an obligation of the firm, in any form, the presumption of the law is that the partner gives this, and the creditor receives it in fraud of the partnership, and has consequently no demand upon them.”

In Farmers’ and Mechanics’ Bank v. Butchers’ and Drovers’ Bank it is said that “ each of the partners is the agent of the partnership as to all matters within the scope of the partnership business, and can bind the firm by making indorsing, and accepting bills and notes in such business; but he has no more authority than a mere stranger to execute such paper in his own business, or for the accommodation of others. If he gives the partnership note or acceptance for his own debt, it is void in the hands of any party having knowledge of the consideration for which it is. given.”

Cheney, for some time prior to the giving of these notes, had been dealing with the plaintiff. He drew checks on the East Eiver Bank of ¡New York, and procured them to be cashed by the plaintiff, and these checks, for the security of the bank, were indorsed by Vail. At one of the times when he procured the plaintiff to cash a check he said to its president: “My partner has, or should have, the money for this to-day; but he has not got it, or cannot get it, and we want this amount.” It is now claimed on the part of the plaintiff that this gave it the right to suppose tnat the money which was given to Cheney upon his check was for the benefit of the partnership, and hence that the check was in the partnership business. Subsequently other checks were drawn by Cheney, and cashed by the plaintiff, and paid by the bank upon which they were drawn. Finally, a check for upwards of $5,000 was drawn by; Cheney, indorsed by Vail, and cashed by the plaintiff, which was protested for non-payment, and these notes were given to take up that check.

We do not think that what was said by Cheney to the plaintiff’s ¡^resident, under the circumstances, authorized an inference that he was procuring the money for the firm, or in its business. All of the checks were his individual checks, and not the firm checks, and the bank had no reason to infer that he was drawing his individual checks in the firm business, or to procure money on the firm account or firm credit. The money was loaned on his individual check, and on the credit of Cheney and the indorser, and not on the credit of the firm. It was in form and in fact Cheney’s check, and the president of the bank testified that he cashed the check on the responsibility of Vail, theindorser. We do not think that it is a just inference, from, the language said to have been used by Cheney, that the checks were made in the business of the firm. But the declaration of Cheney, made in a transaction which was really as well as apparently his individual transaction, outside of the firm business, could not make evidence against the firm or his partner. In Hickman v. Reineking (6 Blackf., 387), where A., being in partnership with B., collected a sum of money in his individual capacity for C., and afterwards executed to the latter a note in the name of the firm for the amount, and a suit was commenced against the firm on the note, the plaintiff offered to prove that A., during the existence of the firm, had declared that the money had been used by him and his partner in the partnership business, and it was held that the evidence was inadmissible. In Thorn v. Smith, supra, it was held that it was not competent for one partner, by his declarations, even during the existence of the partnership, to change what, on the face of the transaction, appeared to be his individual debt, into a debt against the firm.

During the progress of the trial Vail, called as a witness for the plaintiff, was asked this question: “Did you ever have any conversation with Mr. Cheney in reference to his partnership, in connection with indorsing checks on paper ?” Counsel for Underhill objected to the question as incompetent, as against him, and the objection was sustained, and counsel for plaintiff excepted. Then this question was asked: “Was any representation made by Cheney to you that any of this money which was to be raised on checks indorsed by you was for the purpose of the business of the house ?” Underhill’s counsel objected to this question as incompetent, as against him, and the objection was sustained, and plaintiff excepted. It is now claimed that the rejection of this evidence was error. We do not think that what Cheney said to Vail, not communicated to the plaintiff, was competent or material. The declarations sought to be proved were made when Cheney was engaged in a transaction, both apparently and really, without the scope of the partnership business, and hence, for reasons already stated, were incompetent, as against Underhill.

The plaintiff did not take these notes as assignee of Vail, or from Vail, in such a sense that it can stand in his shoes; but the notes were made and delivered to Vail, and by him delivered, for Cheney, to the bank, to satisfy Cheney’s debt to the bank, and they had no inception until their delivery to the bank. The mere fact that Cheney could not testify that some small portion of the money obtained by him of the plaintiff was not used for the firm was of no importance. The debt was in form the debt of Cheney, and if plaintiff claimed that it, or any part of it, was created for the benefit of the firm, it was incumbent upon it to prove that. The mere inability of Cheney to testify that no part of the money was used for the firm proved nothing.

We are therefore of the opinion that the judgment should be affirmed, with costs.

All concur.  