
    Austin and Taylor v. Williams, Chase, and Gardener.
    Evidence that a sale of goods to C. was made upon an understanding that W. was his partner, and upon the credit of W., is admissible against W., but not available without other proof of partnership.
    Where a partnership have assumed no name, one partner may bind the other by contracting in the name of himself and company.
    
      Proof of usage and custom of merchants may be admitted, but the opinions of -witnesses are not admissible.
    This cause was adjourned from the Supreme Court of Hamilton county, and came before the court upon a motion for a new trial.
    The plaintiffs lived in the city of New York, and the suit was brought upon a promissory note, subscribed William Chase & Co. This note was executed by William Chase only, and in everything preliminary to the trial, stood exactly upon the same grounds as the case of Aspinwall v. Williams and others, reported Yol. I., p. 84. The parties defendants .being the same, and the foundation of the partnership the same as in that case.
    At the trial of this case the defendants objected to evidence being given by the plaintiff, that the plaintiffs understood, from letters in the possession of Chase, written not by the other defendants, but by third persons, at the time they sold the goods, for which the note was given, that Williams, the defendant, was a member of the firm. But the court overruled the objection, and permitted the evidence to go to the jury.
    The defendant also objected to the article of agreement, between Chase, Williams and Gardner, going to the jury, as evidence of the existence of the firm of William Chase & Co.,- whereon to charge the defendant, Williams, but the court overruled the objection, and the article was given in evidence to the jury.
    The defendant introduced witnesses to prove, that, according to the law merchant, a partnership created, without taking a name, could only make contracts in the name of all the members of the firm, and that, according to the law merchant, the partnership, claimed to have been .created in this case, having taken no name, the note subscribed William *Chase & Co. could not bind Williams and Gardener.
    The witnesses examined testified that they knew of no established rule or custom, but expressed their own opinions, that, in the case stated, the note should only bind Chase, who executed, as it was admitted that the goods, for which it was given, never came to the hands or use of the other defendants. The plaintiff objected that the testimony was irrelevant, and the court overruled it. The court also instructed the jury that the article of agreement constituted a partnership from the commencement, according to the decision in the case of Aspinwall v. Williams and others, before referred to. •
    The jury found a verdict for the plaintiffs, and the defendants moved the court for a new trial, upon the ground that the court erred in ruling all the points before stated. The decision upon this motion was adjourned here.
    Gazlay, in support of the motion:
    Whether the defendant was a member of the firm of William Chase & Co. was a fact which could only be proved by the articles of agreement, or by persons who knew the fact, from being present at the formation of the partnership, or by the acknowledgments of the defendants to be charged. The fact that it was so understood by the plaintiffs, or others in New York, was not admissible évidence; because not founded upon knowledge, but upon hearsay.
    The article of agreement ought not to have been admitted in evidence; it contained stipulations for a partnership between the defendants, but it recognized no such - firm as that of William Chase & Co., unless it be a legal deduction, that when persons asso-. elate for a particular purpose, and take no name, any one of them, without the consent or knowledge of the others, may assume a name and bind the others by it.
    This is denied to be law. It is a principle, as applicable to partnerships as to other contracts, that no person can be bound by an agreement, but with his own consent, expressed by the means and in the mode he has authorized. The law is supposed to be well set-tied, that a partner in ^-making a note to bind the firm, must sign the name of the firm, or the individual names of the members. Chitty on Bills, edition 1821, p. 52, 53; 1 Salk. 126; Doug. 653. It has even been decided, that when a note appears on the face of it to be the separate note of A., it can not be declared on as the joint note of A. and B., though given to secure a debt for which both were liable. 15 East, 7. [On this point Mr. G-azlay made an elaborate argument, contesting the correctness of the decision in Aspinwall v. Williams and others, as to the commencement of the partnership, which it is deemed unnecessary to report.]
    The evidence of merchants, as to the usage and custom, in cases where no name is assumed in the articles of copartnership, and in what manner writings should be sighed to bind the partnership, ought to have been received. Chitty on Bills, edition 1821, p. 49; Doug. 653. The case in Douglas was this: Two persons, not partners, drew a joint bill, payable to their order; one of them only indorsed it, and the indorsee brought an action against both. The question was, whether the indorsement of one was a sufficient transfer to vest the interest in the indorsee. At the trial, Lord Mansfield nonsuited the plaintiff, conceiving that the interest could only pass by the indorsement of both. But, upon a motion for a new trial, the court were unanimously of opinion, that the indorsement was sufficient, and a new trial was granted.
    Upon the second trial the defendants offered evidence that, by the universal understanding and usage of all the bankers and merchants in London, the indorsement was bad, because not signed by both payees. The evidence was objected to, but admitted, and a verdict found for the defendants. This decision is supposed to be a full authority for admitting the evidence offered, in the case at bar.
    No argument was submitted on the other side.
   By the Court :

The evidence that the plaintiffs understood the defendant to be a partner at the time the credit was given, was not offered or admitted to prove the partnership, '[but to, prove that credit was, in fact, given to the defendant Williams. *For this purpose it was clearly admissible. Whether the conduct of the defendant had been such as to authorize this understanding, was a distinct fact, to be proved by other testimony, without which the plaintiff could not recover.

In the case of Aspinwall v. Williams and others, 1 Ohio, 84, this court decided, upon full deliberation, that the agreement between the defendants constituted an immediate partnership; and to that opinion they still adhere. In that ease, too, they adjudged that the note subscribed William Chase & Co. bound the partnership. This opinion is not shaken by the authorities and arguments now urged for the defendant. The rule laid down in Chitty, and upon which the defendant relies, is thus stated: “ Whenever a person draws, accepts, or indorses a bill for himself and partner, he should always express that he does so for himself and partner, or subscribe both the names, or the names of the firm, and that otherwise it will not bind the partner.” This rule is broader than the defendants’ counsel admits. Although neither the individual names of the partners, nor the name of the firm is used, still the partner may be bound if the party signing express that he does so for himself and. partner. There is no set form of words in which this expression should be made; and, where the firm have assumed no name, as in this case, the signing, William Chase & Co. is a clear and sufficient expression, that the note was given for the drawer and his partners, and must bind the firm.

The evidence offered by the defendant of a usage and custom of merchants was overruled, after it was given, because it did not go to establish any such usage or custom as was set up. The witnesses testified only as to their own opinions. A universal usage and understanding among merchants, as in the ease cited from Douglas, is very different from the mere opinions of witnesses, and upon this distinction the testimony was properly overruled. The motion for a new trial must be overruled, and judgment entered on the verdict, 
      
      HoTE by the Editor. — That a partner can not bind a copartner by a bond under seal, see vii. 175, part 2; xi. 223. Power of a partner to bind his copartners generally, see i. 84; iii. 425; v. 514; xiii. 300; xiv. 58, 592. As to what constitutes, and what evidence will establish a partnership, see i. 84; xvi. 166. Eor a late case touching evidence to support a usage or custom, sea xvi. 421.
     