
    Fletcher vs. Brown.
    Where a partner executed a note in the firm name to raise his share of the capital stock and such note was executed to a person ignorant of that fact, the firm was responsible for the note, and the other partner entitled to his bill for contribution. This bill for contribution could be defeated however by proof under appropriate pleadings, showing that defendant had paid his proportion of the debts of the firm.
    This bill was filed in the Chancery Court of Murfreesboro’. The following decree was entered in the case. •
    “Be it remembered that on this, 9th day of September, 1846, this cause came on for final hearing before the Hon. B. L. Rid-ley, Chancellor, upon the bill, answer, replication and proof in the cause.. And it appearing to the satisfaction of the Court that complainant Richmond S. Fletcher, Wm. B. Buckner and Isaac C. Brown, defendant’s testator, entered into co-partnership as merchants in the town of Murfreesborough sometime during the year 1836, that Buckner & Brown were each to furnish one thousand dollars as a capital to merchandize upon, and complainant was to furnish his labor and skill and receive for the same one third of the profits. It further appearing that the said Isaac C. Brown in order to raise the portion of the capital he bound himself individually to furnish the firm, executed on . the 6th and S26th day of March 1837, to Ann Wade two notes for three hundred dollars each, and signed thereto the name of the firm of Brown, Fletcher & Co. It appearing to the court that the use of the name of the firm was not authorised for the purpose of procuring said sum of money so agreed to be advanced by the said Brown. It appearing that the proceeds of said notes were applied as aforesaid to the raising of the capital that the said Brown was individually to furnish the firm. It appearing also to the court that complainant and Jane M. Brown as the executrix were sued on said notes (Buckner having removed to Texas) and on the 24th day of March, 1847, judgment was rendered against them jointly by the Rutherford Circuit Court for the full amount of both of said notes, making together about the sum of eight hundred dollars. It appearing that complainant was compelled by execution from said court to pay the one half of said judgment. It is therefore considered by the Court that complainant Richmond S. Fletcher, recover of the said Jane M. Brown, executrix of the said Isaac C. Brown, said sum of four hundred dollars with interest, making together the sum of five hundred dollars for which execution may issue as at law to be levied of the estate of said Isaac C. Brown in the hands of the said Jane M. Brown his executrix, and that the executrix pay out of the assets of said estate the costs of the cause for which execution may issue as at law.
    From this decree defendant appealed.
    
      Avant, for complainant.
    
      Keeble, for defendant.
   Green, J.

delivered the opinion of the court.

It appears from the pleadings and proof in this cause, that complainant and the defendant’s testator, Isaac C. Brown and one William B. Buckner entered into a mercantile partnership in 1836. Brown and Buckner were to furnish one thousand dollars each of capital, and the complainant was to give his personal attention to the business, in lieu of capital, and the parties were to share equally. In order to raise money to pay in the capital he was bound to furnish, Brown executed to Ann Wade two notes for $300 each, dated the one the 6th and the other the 26th of July, 1836. These notes were executed in the firm name of Brown, Fletcher & Co. In the latter part of 1837, James F. Fletcher purchased complainant’s interest in said firm and became a partner of Brown & Buckner. The complainant and the defendant as executrix of Brown, have been sued, and the complainant has been compelled to pay one half the amount of the judgments, which have been obtained on said notes; and he now brings this bill to recover the amount so paid for Browm, alledging that the money raised upon the said notes, was raised for Brown’s individual use, and applied by him towards furnishinghis share of the capital stock of the firm, and that said Brown improperly executed the notes in the name of the firm. The defendant answers, and denies, that the said notes were for the individual benefit of Brown: or that the proceeds were applied to his use; but, insists that they were firm debts. She has been surprised at the amount of debts, she has had to pay. It has been a losing business, and she has paid 13000 of the debts.

But the defendant does not ask for an account, nor states that the complainant is liable for any portion of the debts she has paid. The proof makes it clear, that the debts to secure which, the notes in question were executed, were made by Brown for his individual benefit, and the money was applied to his use. He improperly, therefore, used the firm name, in the execution of the notes.

But if the person to whom they were given, was ignorant that the money was borrowed to pay anindividual debt, all the partners were liable.

Hence the complainant could not defend himself against the action of Ann Wade upon the notes.

But, as it now appears that the money thus raised, was applied to the individual use of Brown, his copartner, Fletcher, is entitled to a decree for the amount he has been compelled to pay.

There is proof, that the defendant has paid a considerable amount, in discharge of the debts of the firm of Brown, Fletcher & Co., and her counsel insist that she ought not to be held liable to the complainant for the amount he now claims — as she has paid for the firm much more than her proportion of the debts.

But it does not appear that any of the debts the defendant has paid, were liabilities of the firm, while the complainant was a member of it. He ceased to belong to the company in 1837; and of course was not liable for any debts, contracted after that time. #

Besides, the defendant does not ask an account. If she had filed her cross bill, stating the payment by her, and asking for an account — it would have been proper to have ascertained, whether the complainant as copartner was liable to contribute to the estate of her testator, for such excess of advances by her — and in that event, any sum that may have been found due to her on the partnership account, would have been deducted from the sum claimed by the complainant in this bill.

But the pleadings in this cause, are not framed with a view to such investigation — nor is there any thing in the evidence, that makes it appear, that the complainant is liable for any of the debts the defendant has paid. They all may have been contracted since James F. Fletcher became a member of the firm, and most probably such was the case.

Let the decree be affirmed.  