
    Jonathan Wheeler vs. Reuben N. Rice & another.
    Admissions by the payee, after indorsement, of a note payable on demand, are not admissible in a suit by the indorsee against the maker, notwithstanding St. 1839, c. 121, § 1, authorizing any matter to be given in evidence in such a suit, which would be a legal defence as against the payee.
    Where evidence is offered for a specific purpose, and rejected, the party offering it cannot, on exceptions, maintain its admissibility on a ground not stated at the trial. Where one of two partners, during the existence of the partnership, gave a promissory note in the name of the firm for his private debt; and the other partner afterwards, knowing these facts, by a promise to pay the note, induced the holder to forbear attempting to collect it; it was held, that a jury would be warranted in returning a verdict against both in an action on the note, without expressly finding that the note had been ratified by the other partner.
    This was an action of assumpsit against Reuben N. Rice and David Loring, on a promissory note for $75, dated January 1, 1846, payable to H. A. Wheeler or order, on demand, with interest, signed “ R. N. Rice & Co.; ” and indorsed by II. A. Wheeler before the commencement of the action.
    Rice having left the state before service of the writ, and no service having been made on him, the plaintiff discontinued as to him, and the suit was defended by David Loring, the other defendant.
    At the trial in the court of common pleas, before Byington, J., the plaintiff introduced evidence tending to show, that Rice and Loring were partners in business in Concord, in and before the year 1844, under the firm of R. N. Rice & company. There was also evidence on the point, whether the partnership continued or was dissolved at the time of the giving of the note, and this question was left to the jury, with the instructions hereinafter stated.
    Wheeler, the payee of the note, being called as a witness by the plaintiff, testified as follows: The note was given to the witness for a private debt due from Rice to him, for the rent of a house occupied by Rice and his family. In the autumn of 1846, about a week before Rice left the state, the witness went to the place where Rice was employed, to see him, and there met Loring, who asked the witness what he wished to see Rice for, and also, if it was about that note. The witness replied that it was; that he wanted it settled before Rice went away. Loring replied, that he, the witness, need not trouble himself about it, for he, Loring, should pay him. Loring also said, it was a good note, and he should pay it. The witness added, that he, the witness, said no more; he thought Loring’s note good; and he never had any other note signed by Rice & company.
    The defendant offered in evidence, (for what purpose the bill of exceptions did not state,) the admissions of the said Wheeler, respecting the note, after he had passed it away, on the ground, that by force of St. 1839, c. 121, § 1, such admissions were receivable in evidence, in like manner, as if Wheeler had been a party to the suit. The evidence was rejected.
    The defendant contended, that the note in evidence was not one upon which a suit could be maintained in the name of an indorsee; that having been given for the private debt of one of the partners, it did not bind the firm or the other partner; that, inasmuch as there was no proof of any consideration for Loring’s promise, nor any evidence that Wheeler, the payee, had omitted any exertions on his part, or lost any means of collecting the note of Rice, in consequence of Loring’s promise, or that Loring knew, when the promise was made, that the note was given by Rice for his own debt, there was no proof of any consideration for Loring’s promise; and that the said promise, being to pay the debt of another, and not in writing, was void by the statute of frauds.
    The presiding judge instructed the jury, that if the note was given by Rice to the payee, Wheeler, after the dissolution of the partnership, for his own private debt, the plaintiff could not recover of Loring, although he had made a promise to pay it, as testified to by the payee; but if it was given by Rice for Ms own private debt, while the partnership existed; and Wheeler being about to enforce the payment of it, Loring, with knowledge that it was given for Rice’s private debt, and to induce Wheeler to forbear attempting to enforce payment of it, promised to pay it, and Wheeler refrained from attempting to collect it, in consequence of that promise, the plaintiff would be entitled to recover.
    The jury, under these instructions, returned a verdict for the plaintiff, and the defendant excepted.
    
      J. F. Barrett, for the defendant.
    
      E. Buttrick, for the plaintiff.
   Bigelow, J.

The bill of exceptions in this case presents two questions for the consideration of the court. The first relates to the competency of the admissions of Wheeler, the payee of the note in suit; and we are of opinion, that for the purpose for which they were offered at the trial, they were rightly rejected. By the bill of exceptions, it appears that this testimony was offered on the ground, that by virtue of the statute of 1839 c. 121, § 1, concerning notes payable on demand, the declarations of the payee were to be received in evidence, in like manner as if he had been the owner of the note and the plaintiff on the record. But this is founded on a misconstruction of the statute. The legislature did not intend to change the rules of evidence in the trial of actions brought on such notes by indorsees, so as to make that admissible, which was before incompetent testimony. The word “ defence,” as used in the statute, is not susceptible of any such construction. The manifest intent of this section of the statute was to extend the grounds of defence as respects notes on demand in the hands of indorsees, and to enable promisors to avail themselves of all the legal and equitable considerations which would constitute a good answer to suits, if brought by the payees, such as payment, set-off, and the like. The statute secures to promisors the benefit of all such defences, but it does not allow them to be proved by any other or different evidence, than such as would be competent in any other cases. Thayer v. Buffum, 11 Met. 398. The admissions of Wheeler, the payee, having been made after he had sold the note to the plaintiff, were therefore wholly inadmissible.

It was suggested in the very elaborate argument in behalf of the defendant, that this evidence, although not admissible for the purpose or on the ground on which it was offered at the trial, was nevertheless competent to control and contradict the testimony of Wheeler, he having been called as a witness by the plaintiff. This may be so, but it is too late for the defendant now to avail himself of any such ground. In the first place, it does not appear by the exceptions what the nature of the admissions offered to be proved was, and the court cannot set aside a verdict merely upon a supposition that such admissions, as are now suggested, might be proved. But the more decisive answer is, that the evidence was not offered for any such purpose. When evidence is offered at the trial of a cause for a special purpose, and its admissibility is put by the party offering it upon a distinct legal ground, and the evidence is thereupon rejected, the party cannot afterwards, on exceptions taken to the rejection of the evidence, offer it for a new purpose and avail himself of additional reasons for its competency, which were not suggested at the trial. It may be, if it had been offered for the purpose now stated, no objection would have been made to its competency, or if made, it would, most probably, have been overruled. The party must now be confined to the specific offer which he made at the trial. Wait v. Maxwell, 5 Pick. 217; Holbrook v. Burt, 22 Pick. 552; Howard v. Hayward, 10 Met. 409; Waters v. Gilbert, 2 Cush. 27; Holbrook v. Jackson, 7 Cush. 136,154.

We now come to the consideration of the remaining exception taken at this trial. The rule is now well settled, that if the note of a firm is given by one copartner for his individual debt, during the continuance of the copartnership, and the other copartner, with a knowledge of this fact, recognizes and ratifies the note so given as a partnership note, it becomes thereby binding on the firm. A subsequent ratification, in such cases, is deemed to be equivalent to a previous authority, and no new consideration is necessary to give validity to the note. Such ratification or recognition may be implied or inferred from the acts or omissions of the other copartner, after he knows or has the means of knowing, that his copartner has signed the partnership name for an individual debt; a fortiori, it may be presumed, when there is proof of an express promise to pay the note by the copartner who did not sign it. Sweetser v. French, 3 Cush. 309; Gansevoort v. Williams, 14 Wend. 139,140; Bank of Kentucky v. Brooking, 2 Littell, 41.

These propositions are not disputed by the counsel for the defendant; but the ground of objection to the instructions of the judge is that the case was not so presented to the jury as to call on them to find such a ratification or recognition of the note by Loring as would make it binding on him. To test the soundness of this position, it is necessary to consider carefully what facts the jury must have found in order to render a verdict for the plaintiff under the instructions actually given to them. It is very clear that the jury were satisfied that the note in suit was given during the continuance of the copartnership, because they were distinctly charged, that if the partnership was dissolved when the note was given, their verdict must be for the defendant. The verdict also establishes the fact that Loring knew the note was given for Wheeler’s private debt, for the jury were expressly instructed that this was one of the facts essential to the plaintiff’s right to recover. It may also be presumed that Loring knew it was the note of the firm which Wheeler held, because the case finds that he never held any other note signed by the partnership name. And, finally, the jury have found an express promise by Loring to pay this note. Here, then, it is proved and found by the jury that the note in suit was given by Rice in the name of the firm during the continuance of the copartnership to pay his individual debt, a knowledge that it was so given by Loring, and an express promise by Loring to pay it. Now these are all the facts which are necessary to constitute a recognition and ratification of the note, as a partnership note, and we are therefore entirely satisfied, that on this finding the defendant Loring may properly be charged on the ground of an assent to and adoption of the note as a contract of the firm. The instructions given to the jury, although they did not distinctly present the question of ratification to their consideration, yet embraced every fact which was necessary to a verdict on that specific ground, and surely the defendant cannot complain that the jury were also required to find other facts as proved, which were not essential to the plaintiff’s right to recover. Exceptions overruled.  