
    Same Term.
    
      Before the same Justices.
    
    Lusk vs. Smith and others.
    A justice of the supreme court has the power, at special term, to hear and decide a motion for a new trial, on the ground that the verdict is contrary to the evidence.
    Where a plaintiff, in his complaint, alledged that after the dissolution of a co-partnership firm consisting of the defendants, notes previously made by the firm and then held by the plaintiff, were surrendered up to one of the members of the late firm, on receiving from him new notes of the firm for the same amount; and that the defendants, and each of them, had consented to the new notes, and acknowledged their liability on the same; and the plaintiff demanded judgment for the amount of the new notes, and interest; Held that the old notes were not declared on in the complaint, or mentioned as subsisting demands, but that they were stated as inducement, merely.
    Notes executed by one of several partners, in the name of the firm, after a dissolution of the partnership, will not bind the firm, unless a consent and ratification of the act of giving them, by the other members of the firm, is proved.
    Nor can one partner bind his copartners, by giving a note, after a dissolution of the partnership, by virtue of a power “ to adjust the debts of the firm,” or “ to settle the partnership concerns.”
    This was an appeal, by the defendants Smith and Ayer, from an order made by Justice Allen, at a special term, granting a new trial. The pleadings and evidence established the following facts. The old firm of J. H. Tomlinson & Co. (of which the defendants were survivors,) borrowed $800 of James W. Lusk, the plaintiff, in June, 1845, for which they gave him their note. In 1846 the note was renewed for $856, including the interest. On the 7th Dec. 1846, the plaintiff lent the firm $405,31, for which the firm gave him their note. The firm, about the same time, collected for the plaintiff $41,50 of James Tyler. The firm of J. H. Tomlinson & Co. became dissolved about the 10th of December, 1846, and on the 22d of December It. Lusk, who then held the two notes as the agent of the plaintiff, called at the counting room of the partnership and settled the two notes, together with the $41,50, by taking a due-bill for the whole amount, $1333,95, signed “ J. H. Tomlinson & Co.” by C. Hulbert Toll, one of the old firm. This due-bill was one of the claims in this action, which was surrendered to the clerk on the trial. The firm of J. H. Tomlinson & Co. also owed R. Smith upon notes, one for $200 and one for $300. These two notes were turned out by Smith to the plaintiff to the amount of $500 to pay on a land contract which the plaintiff had against one Thompson. In the latter part of April, 1847, the plaintiff, .by R. Lusk his agent, called at the counting room of the old firm and arranged these two notes, by taking one note of $500, dated the first of April, 1847, to meet the payment on the land contract and a small note to balance directly to R. Lusk, which J. W. Smith, one of the firm and one of the defendants, after-wards paid. The new note of $500 was signed by J. H. Tomlinson & Co. by C. Hulbert Toll, one of the partners, and was one of the claims in this action, and which was surrendered to the clerk on the trial. The plaintiff, by his complaint, demanded judgment for $1833,95, and interest. On the trial the plaintiff insisted that the new due-bill given in the company’s name by Toll, one of the partners, was not given or accepted in satisfaction or extinguishment of the original demands; and that the giving up of the old notes was not evidence of any design to extinguish the original demand. He therefore claimed that in case the new notes should be held to be invalid, for want of authority in C. Hulbert Toll to sign the partnership name thereto, he could recover upon the old notes in this action. A verdict was rendered at the circuit for the defendants; and the plaintiff made a ease. But instead of moving at the general term for a new trial, on appeal, he stayed the entry of a judgment by an order, and moved, at the special term, for a new trial, on the ground that the verdict was against evidence. A new trial was granted, at the special term; and the defendants appealed from the order granting a new trial. At the same time they moved to set aside the appeal and the original order, on the ground that a single judge has no power, under the constitution, or the code, to grant a new trial on the merits.
    
      Le Roy Morgan, for the plaintiff.
    Q. A. Johnson, for the defendants.
   By the Court, Gridley, J.

I. The first question presented on this motion is, has the constitution forbidden the granting of a new trial on the merits, by a single justice 1 It was provided by the 4th section of article 5 of the constitution of 1821, that “ the supreme court shall consist of a chief justice and two justices,” but it was added, “ any of whom may hold the court.” Under this provision it was decided that one justice could hold a court either at a general or special term. The phraseology of the constitution of 1846 differs from that of 1821. The 6th section of article 6 declares that any three or more of the justices may hold the general terms; and that any one or more may hold special terms and circuits. One judge can not now, as formerly, hold a general term of the court. But section 5 of the same article confers on the legislature the same powers to alter and regulate the jurisdiction and “ proceedings in law and equity,” it possessed before. That power was very broad. Under it circuit judges were authorized to hold courts to hear and decide cases and bills of exceptions, and on the decision a judgment might be entered in the cause. So too, the 20th section of the act in relation to the judiciary, (Laws of 1847, p. 325,) expressly directs that “ orders and decrees in suits and proceedings in equity may be made at special terms, and that all suits and proceedings in equity shall first be determined at a special term, unless the justice holding the special term shall direct the same to be heard at a general term.” The power to hear a cause on the merits on pleadings and proofs, and to make a final decree in the same, is, by this section, expressly conferred on a single justice sitting at a special term. And this provision has been held constitutional by the court of appeals. In Qracic v. Freeland, (1 Comst. 228,) it was decided that it was the duty of the court sitting in general term, to entertain a rehearing of a cause that had been heard by a single justice. If the provision for a hearing by a single judge had been a violation of the constitution then the decree would have been simply void as having been made coram nonjudice, and would have been neither the subject of an appeal nor of a rehearing, and it needs no argument to show that if a single judge can hear a cause on the merits, and make a final decree therein, under the present constitution, he may grant a new trial, on the merits, where the verdict is against the evidence.

II. The next question is whether the power is conferred by the code of procedure ? It may be admitted that this power is nowhere given in express terms; and that the decision of this question involves the construction of several provisions of that instrument, which are obscure and of difficult interpretation. Nevertheless I am of the opinion that the power is necessarily implied, and that it may be shown with reasonable: certainty. I have come to the following conclusions upon this point.

1. That no appeal from a judgment entered by direction of a single justice can now be brought for any error of fact. Appeals are now confined to errors of law. (Code, § 348.) In that respect the code of 1849 differs from that of 1848. (See § 297 of the code of 1848.) Can it be supposed that the legislature intended to deny-all relief, where the jury, by overlooking some important fact, or by misunderstanding the evidence, or from any other cause, had determined manifestly against evidence? Or where from passion or prejudice the damages were excessive; or where, upon a point not litigated at the trial, the injustice of the verdict was placed beyond dispute by newly discovered evidence? This was an inherent and salutary part of the jurisdiction of the supreme court, which it can not be supposed the legislature intended to abolish.

2. These cases can not .be heard at a general term, except on appeal from the order” of a single judge, with-the single exception of a case agreed on, under section 372. .It is the manifest policy of the code that the. court sitting at the general term shall be an appellate tribunal'. By the 278th section it is declared “ that judgment upon an issue of law or of fact, or on confession, or upon failure to answer, (except, &c.) shall, in the first instance, be entered upon the direction of a single judge, or report of referees, subject to review at the general term.” Though this section does not specify judgments on a case upon the evidence, yet the terms of the section embrace all cases ; “judgment upon an issue of law or of fact” is an expression that was intended to include every case that can arise, in which judgment is rendered, after an issue has been framed upon an answer, either of law or fact. This is in accordance with the theory of giving two appeals in all cases originating in the supreme court, as set forth in the report of the commissioners, under section 120. They say, “ Issues of law and fact in equity cases have heretofore been tried before a single judge. Issues of fact, in common law cases, have heretofore been tried by a single judge: while issues of law have been tried before the judges. To produce uniformity, we propose that all issues be tried in the first instance, before a single judge, whether of fact or law. By this arrangement we are enabled to give two appeals in cases originating in the supreme court; one from the special term, or circuit, to the general term, and one to the court of appeals.” Thus, where questions of law are decided at the circuit, and exceptions taken, the decision at the circuit is the first decision, and from that there is an appeal to the general term; and from the decision at general term to the court of appeals. It can hardly be doubted, on a careful examination of this report, that all questions of law arising at the circuit were intended to be heard on appeal, and on appeal only. The original right to have these questions heard at the general term, without an appeal, however convenient that would be, is in hostility to the spirit of the code, which provides that the remedy for any error in the law, committed at circuit, must be sought by appeal, and on giving security. But,

3. In trials before a single judge or jury, where there is no error of law complained of, there can be no appeal. Take the case of a special verdict under section 261, which simply finds the facts. Here by section 278 the judgment must be entered before a single judge: in other words the special verdict must be brought up at the special term, and be argued and decided there, before the judgment is entered. Here is one case, therefore, where the hearing must be before the special term. The power, therefore, is impliedly given in this case to hear a cause on the merits at special term. But how is it with the other cases, where there may be a general verdict, but where the verdiet is so plainly against evidence, or the damages are so enormously disproportioned to the cause of action, that the judge, instead of directing a judgment, orders the case to be reserved for further consideration or argument, under section 2641 This section is a very obscure one, and various interpretations have been put upon it. It has been supposed by some that it was intended to embrace equity cases, where the judge wanted time to settle the provisions of a decree. A conclusive answer to this suggestion is found in the fact that those cases are not tried by a jury, (§ 254,) and therefore section 264 is not applicable to them. Another view of this section regarded it as embracing common law cases, where, from the facts found by the jury, the judge hesitated what judgment to give. (Monell's Pr. 241.) But the advocates of this theory forget that on a general verdict there can be no hesitation; for the judgment follows the verdict, unless the judge sets the verdict aside. Another construction of this section regarded it as giving a right to the judge to reserve the case for argument, to review his own decisions on a case or bill of exceptions at the special term. This is a more plausible construction than the others; but it is opposed to the theory of two appeals, before mentioned; and it involves the idea that for errors of the judge at circuit a party may have his choice to go to the special term for redress at a comparatively small expense, and without giving any security, or to go to the general term on an appeal by giving security to pay the debt. In the one case he virtually has the benefit of three appeals; from the judge at circuit to the special term, from the special term to the general term, and from the general term to the court of appeals. There is nowhere in the code any allusion to this practice. It is not found in section 257, which prescribes the order of business at the special term and circuit; nor is there any provision for the services in section 307, which prescribes the rate of compensation for services in the several phases of a suit; and the remedy by appeal is provided in section 348, for precisely this class of cases, viz. errors of law, committed by the judge on the trial. If the legislature had intended to confer on the court at special term this power of reviewing the errors 01 the judge at circuit, they would have said so, in unequivocal terms. But it is nowhere even alluded to, in the code.

But it is very different with cases on special verdict, motions for new trial on the ground that the verdict is against evidence, and on the ground of excessive damages. In all these cases, the motion must be made at special term or nowhere. There is no provision for an appeal (except on the law) from a judgment entered by the direction of a single judge. We have seen that the case of special verdicts must go to the general term. Then why not in the other cases I have enumerated, and where there must be, otherwise, an absolute failure of justice? It seems to me that by a very strong implication this power must be exercised by a single judge, and at the special term.

4. Again; in section 401 it is enacted that motions may be made, in the first judicial district, to a judge or justice out of court, except for a new trial on the merits. A motion for a new trial for the reason that the verdict is against evidence, is a motion for a new trial on the merits ; and by implication, that motion may be made at á special term.

■ III: Assuming that the motion for a new trial is properly made at the special term, when the verdict is against evidence, the first inquiry is whether the old notes, which were delivered up when the new notes were given, were declared on in the complaint and put in issue by the pleadings. From a careful consideration of the complaint I am of opinion that they are not. The complaint sets out the making of the note for $856 on the 26th day of June, 1846, and the $41,50 which was paid by Tyler—the dissolution of the firm of John H. Tomlinson <fc Co. on the 10th of December, 1846—that the books, notes, papers and accounts were left at the counting room at Baldwins-ville to be settled—and that on the 22d day of December, 1846, after the dissolution of the firm, C. Hulbert Toll, one of the late copartners, then and there stated and settled the above account ■with the plaintiff; found due the sum of $1833,95, and gave the note of the firm for it, and received the old company notes of the plaintiff, who surrendered them up on receiving the new notes. Then follows an averment that the defendants and each of them, have consented to the settlement and the due-bill, and acknoioledged their liability on the same.

Another count in the complaint sets forth the notes of $300 and $200 to Richard Smith, and the transfer of them to the plaintiff, and the giving of a new note instead of the same for $500, on the 1st of April, 1847, in the name of the firm; and the surrender of the old notes. And then follows the same averment as in the first count, alledging that the defendants, and each of them, had consented to the notes, and acknowledged their liability on the same. Judgment is then demanded for $1833,95 and interest.

Now on this complaint it is not possible to say that the old notes are mentioned as subsisting demands. The very fact of alledging a surrender of the old notes, and a consent to, and acknowledgment of liability on the new ones, by each member of the firm of J. H. Tomlinson & Co., with the demand of relief on the new securities, is evidence that the old notes are stated in the complaint as inducement merely. These new notes being executed by one member of the old firm, after its dissolution, were made without authority, unless the plaintiff could establish a consent and ratification of the act of giving them, against the other members of the firm. Now this fact was distinctly put in issue by the only two defendants who appear on the record, viz. Smith and Ayer. The jury have found that they did not ratify the new notes; and that is the question on this motion. Was there so clear and such distinct evidence of a ratification, that the verdict should be set aside ? This question can be answered only by referring to the testimony.

(1.) Richard Lusk swears as follows: “ C. Hulbert Toll signed the new note for $1333,95. John W. Smith and C. W. Toll were present, I think, and R. H. Sharp, clerk of the. old firm.” Toll made the note, and must have been present; but Smith was not present, according to the recollection of Sharp as stated by him.

(2.) The same witness, Lusk, swears in a subsequent part of his testimony, speaking of the $1333,95 and $500 notes, that “ In the fall of 1847 the plaintiff left these notes and other demands with me to collect, and he again went to Wisconsin. I called on each of the defendants, for the money, and called often. They said they should be paid in a few weeks.” On his cross-examination he testified, “ I never exhibited either of these notes to Ayer or Smith. I told Ayer the amount of all the notes. I never specified the amount or date of either note. I don’t know as I ever told him of the circumstances of the giving of them.”

(3.) The same witness speaks of Smith showing a memorandum of the claims as taken from their books, including a note to Tomlinson, Lusk <fc Co. amounting to $2200 or $2300, and of several promises to pay them. Now this memorandum must have been of the old notes, and the promise must have been to pay the old notes; for the $500 note was not found on the books of the old firm. (See the evidence of C. H. Toll.) The promises'were assurances given to pay the debts of the firm generally, without reference to these new notes. C. H. Toll speaks of the contents of a written memorandum which was afterwards excluded by the court, and an exception taken. He then proceeds as follows: “ I think that at the time the parties were together the plaintiff’s claims were mentioned, with other claims, except perhaps that the original two notes to R. Smith were mentioned, instead of the $500 note to J. W. Lusk. I heard no objections made to any of those demands of the plaintiff till after Tomlinson’s death.” On the other side, Mr. Sharp refused to sign these notes, on account of the dissolution of the firm, and because the notice of dissolution, signed by all the members of the firm, stated that the debts due to and from said firm would be settled by Tomlinson.

It will be borne in mind that no one of the legal objections can be raised or argued on this motion. It is purely a question of fact, so far as we are concerned, which we are called on to say was decided contrary to evidence, by the jury. Now the rule is that not only one partner has no right to bind his co-partner, after dissolution, but the partner who is authorized “ to adjust the debts of the firm” has no such power. Nor can he make notes by virtue of a power “ to settle the partnership concerns.” (See 1 Hill, 572 ; 2 Id. 520 ; 9 Cowen, 420 ; 2 Comst. 530, 531.) Under this stringent rule we can not say that the jury erred. The evidence of recognition was of the most general and uncertain kind. Besides, the question of the credibility of witnesses is one exclusively for the jury. These notes were made by C. H. Toll when Sharp, who was acting in the place of Tomlinson, refused to sign them, on the ground of a want of authority. And the plaintiff’s agent, with a full knowledge of the dissolution of the firm, and of this doubt as to the power to sign new notes, surrendered up’ the old notes to be cancelled.

We think the learned justice overlooked the fact that there was no issue on the old notes. The order granting a new trial is therefore vacated.  