
    Lewis vs. Woodworth and Pratt.
    The admissions of one of 1wo joint contractors (where they are not partners,) cannot deprive the other of his -defence, when both are sued upon the contract.
    Therefore where two persons gave their note payable in specific articles, and one of them admitted its validity; held, that the other was not estopped from setting up that the note was without consideration and void, although the plaintiff in interest, or the person from whom he received it, had purchased the note on the faith of the admission.
    Assumpsit in the supreme court, where the action was .brought to recover the amount of a note of which the following is a copy:
    “ By the first day of May next, for value received, we jointly and severally promise to pay Sylvester Lewis or bearer, one buggy wagon, to be worth one hundred dollars, to be made in the most fashionable style. Azel Woodworth.
    Norwich, Oct. 4th, 1843. H. R. Pratt.”
    The suit was brought for the benefit of William Clark who bought the note of one Tillinghast. The latter had received it of William Gleason, a previous owner, and had given a horse in exchange therefor. Thé plaintiff gave evidence on the trial tending to prove that while Tillinghast was negotiating with Gleason, he met the defendant Woodworth, and told him that he talked of trading with Gleason the horse for the note in question, and that Woodworth replied, it was “ all right.” Tillinghast afterwards finished the bargain and took the note.
    The defendant then offered certain evidence tending to show that the note was without consideration and void. The plaintiff objected to the evidence on the ground that the admission by Woodwm-th to TiUinghast of the validity of the note, before the latter purchased it, estopped the defendant from setting up any defence, which they might have previous to such acknowledgment. The evidence was rejected and the defendants excepted. The plaintiff had a verdict, and the supreme court sitting in the sixth district granted a new trial. The plaintiff appealed to this court.
    
      
      H. Hubbard, for appellant.
    
      B. F. Bexford, for respondents.
   Hoyt J.

There is no evidence in the case to show that the defendants were partners; on the contrary, it would be inferred from the fact of their signing the note separately, that the purchase of the patent right by them, and giving the note therefor, was a single isolated transaction. The defendants severally joined in the making of the contract, and in the engagement to pay, neither trusted to the other to contract for or bind him. So far, therefore, as there is any evidence or inference to be drawn from the transaction, they did not make the purchase as partners, but as tenants in common. There is nothing to show that either defendant had power to bind the other, or to increase or extend his liability beyond that contained in the note itself. By that contract, Pratt was protected against a transfer of the note to his prejudice. He had ioined with Woodworth in making the purchase and giving the note in question, but in doing so, he had taken care to make it in such form, as to enable him to set up any defence which he might have to it, against the payee or any person deriving title through him. And Wood-worth had no power to deprive him of that defence. If Wood-worth could make admissions which would deprive Pratt of the right to show that the note was fraudulently obtained from him, or that there was no consideration for it, it is difficult to see why he could not with the same propriety change the contract and make Pratt liable for its payment, in a manner different from that stipulated in the note. I can see no good reason for adopting such a rule.

In the case of partners, each partner is the agent of the firm, and of the other partner, and has a right to act for all the members of the firm. But not so with simple joint contractors, or purchasers as tenants in common; there, neither is agent of the other, and their liability is not to be extended beyond their own acts and contracts. Upon the same principle, it has been held that a notice of protest served on one partner is notice to all. But a notice of protest served on one of two joint endorsers, is not notice to the other, and no recovery can be had against eithei without a service on both. (Willis v. Green, 5 Hill, 232 Cayuga Co. Bank v. Warden, 1 Comst. 418.)

1 think the defendant Pratt was not estopped by the admis sions of Woodworth, and that a new trial was properly granted.

New trial granted.  