
    [No. 3136.
    Decided November 12, 1898.]
    Henry M. Richards, Receiver, Respondent, v. T. E. Jefferson et al., Defendants, C. S. Porter et al., Appellants.
    
    PARTNERSHIP — CONTRACTS OF CO-PARTNER — PROMISSORY NOTES-PAYMENT —PLEADING.
    Although one co-partner may have had no authority to bind the firm by the execution of promissory notes in its name, a subsequent memorandum, executed by the co-partnership and reciting that the company is indebted to the payee in sums evidenced by promissory notes executed by the company now overdue, amounts to a ratification of the notes, even if several of them may not be quite due, when there were no other notes between the parties than the ones in suit.
    Proof of payment of a promissory note cannot be introduced! in evidence, unless pleaded.
    A bank is not obliged to retain deposits for the purpose of applying same on the depositor’s notes held by it, if there is no agreement to that effect.
    Appeal from Superior Court, Spokane County.—Hon. Leander H. Prather, Judge.
    Affirmed.
    
      W. B. Heyburn, E. M. Heyburn and L. A. Doherty, for appellants.
    
      Stephens & Bunn, for respondent.
   The opinion of tlie court was delivered by

Scott, C. J.

This was an action upon fourteen promissory notes executed at various timés, commencing with January 2, 1893, and ending on May 25, 1893. All of them were made payable to the order of T. E. Jefferson, at the Washington Hational Bank of Spokane, and they all purported to be executed by the Ouster Mining Company, by T. E. Jefferson. Some of them contain opposite his signature the letters “Mgr.” as an abbreviation for manager. The action was brought against the defendants T. E. Jefferson, W. H. Taylor, C. D. Porter and Peter Porter, as members of the co-partnership called the Custer Mining Company. Charlotte E. Taylor and Lizzie D. Porter were made defendants, as wives of certain of the other defendants, in order to reach community property. At the close of the plaintiff’s testimony, the defendants moved for a non-suit, which was denied; and, the judgment going for the plaintiff upon the trial, certain of the defendants have appealed.

Some of the errors assigned are not argued, and are evidently abandoned. The first part of appellants’ argument is directed to the proposition that Jefferson had no authority to execute the notes in question; but we think this is eliminated from the case for the reason that a subsequent ratification was shown by an instrument which appears in the record, a portion of which relating thereto reads as follows:

“ This Memorandum oe Agreement made this 8th day of August, 1893, between Carey D. Porter, Peter Porter, William H. Clagett, Thomas E. Jefferson and William H. Taylor, of the first part, and the Washington National Bank of Spokane Ealls and W. B. Roberts, Receiver of the Washington Savings Bank as parties of the second part, witnesseth: That, whereas heretofore and now the said parties of the first part constitute the co-partnership known as the Custer Mining Company and as such are the owners of the Custer Mine and other mining properties and certain personal property used in the operation of such mining properties, situate in the state of Idaho, and as such co-partnership they are indebted to the said Washington National Bank in the sum of Eorty Six Thousand One Hundred Eighty 00-100 Hollars, and interest, and also indebted to the said Washington Savings Bank, of which the said W. B. Roberts is Receiver, in the sum of Eifty Eive Thousand Seven Hundred Eorty Six and 54-100 Hollars, and interest, all of which said indebtedness is evidenced by promissory notes executed by the Ouster Mining Company now overdue, . . .

It is argued by the appellants that this admission should not be treated as conclusive, for the reason that it mentioned the notes as overdue, while three of them did not fall due until a few days after the instrument was executed; but there was no contention that there were any other such notes, and the evidence showed that these were the only ones held by the plaintiff or the Washington Savings Bank against the Custer Mining Company; and we think this agreement, under the proofs, clearly showed a ratification of the notes in question, regardless of any authority on the part of Jefferson to execute them in behalf of the company at the time they were given.

Appellants also contend that the court erred in excluding proof offered by the defendants to the effect that the indebtedness had been paid by deposits by the company on ore returns in the Washington National Bank, said notes having been originally negotiated to that bank. The matter has been before this court heretofore in the case of Roberts v. Washington National Bank, 11 Wash. 550 (40 Pac. 225), where the savings bank sought to recover of the national bank on the notes, but was defeated. This proof was excluded, on the ground that there was no plea of payment in the answer, and we think rightly. Also, there was nothing to show that the Washington National Bank was obliged to retain such deposits to pay such indebtedness, if it held the notes at the time.

Affirmed.

Dunbab, Axdebs and Pea vis, JJ., concur.  