
    Anable v. Conklin et al.
    
    A complaint, stating a promissory note, whereby the maker promised to pay the defendants named, “ trading and doing business under the partnership name or firm of O., I. & Co.,” and that said note was “ duly indorsed by said defendants by their said partnership name,” sufficiently avers the partnership: an answer, denying “the indorsement in the complaint alleged,” does not put the partnership in issue.
    
      Heldj accordingly, that evidence, offered by one of the defendants, that he was never a member of the firm of 0., I. & Co., was inadmissible.
    Appeal from a judgment of the Supreme Court. Action against the maker and indorsers of a promissory note. The complaint alleged that the defendants, The Forest and Agricultural Steam Engine Company, at the city of Brooklyn, made their certain promissory note in writing, bearing date on the 4th of August, 1858, wherein and whereby they promised to pay, three months after its date, to the order of the defendants, Henry FT. Conklin, Abraham Inslee, Stephen B. Conklin and David Harrison, trading and doing business at said city under their partnership name or firm of Conklin, Inslee & Co., the sum of $400, for value received, which said note was afterwards and before the same became due and payable, duly indorsed in writing by said defendants, by their said partnership name, and was afterwards, and before the same became due and payable,' duly delivered, so indorsed, to the plaintiff; and which said note was at its maturity duly presented and shown to the defendants, The Forest and Agricultural Steam Engine Company, the makers thereof, for payment, and payment demanded and refused; of all which the said Conklin, Inslee & Co. had due notice, yet the defendants have not paid the same or any part thereof.
    The makers of the note put in no answer. The defendants, Henry FT. Conklin, Abraham Inslee, Stephen B. Conklin and David Harrison, answered that they “ deny the indorsement in the said complaint alleged of the promissory note therein set forth, and also deny any knowledge or information sufficient to form a belief as to whether the said defendants were ever notified of the presentment and non-payment of the said promissory note, as in the said complaint is alleged.”
    The cause came on for trial at the New York Circuit, before Mr. Justice Allen and a jury, in May, 1859. In support of the allegations of the complaint, the plaintiff’s counsel produced a promissory note in the words and figures following, viz.:
    $400. • BrooJclyn, August 4i/i, 1858,
    Three months after date we promise to pay to the order of Conklin, Inslee & Co., four hundred dollars, value received.
    Forest and Agricultural Steam Engine Co. .
    H. N. Conklin, Treasurer
    No. 17 due Nov. 7th, 1858.
    (Indorsed.) Conklin, Inslee & Co.,
    18 to 36 Water st., Brooklyn.
    ' And having proved the making of the same by Stephen B Conklin, one of the defendants, and an indorsement thereof under the firm name of Conklin, Inslee & Co. (the firm name being indorsed by Henry N. Conklin, one of the firm), and having proved the interest, and the protest and notice of protest being admitted, rested his case.
    Whereupon the defendants’ counsel moved for a dismissal of the complaint, and the motion- having been denied by the court, duly excepted.
    The defendants’ counsel then offered to prove that the firm of Conklin, Inslee & Co., was not and never had been composed of the defendants, Henry N. Conklin, Abraham Inslee, Stephen B. Conklin and David Harrison, as alleged in the complaint, and that the defendant, Harrison, had never been a member of the firm of Conklin, Inslee & Co., which offer of the defendants’ counsel was overruled by ttie court, and said evidence excluded ; to which the defendants’ counsel excepted.
    The defendant’s counsel having then rested his case, the jury, under the direction of the court, found a verdict for the plaintiff; to which direction of the court, the defendants excepted. On appeal to the Supreme Court, the judgment was affirmed.
    
      William H. Scott, for the' appellant, argued that an unanswered allegation, which is to preclude a party from disproving a fact intended to be asserted by it, should be direct and positive. (Oechs v. Cook, 3 Duer, 161.) The statement in this complaint is not a direct allegation of the partnership of the defendants, but merely descriptive of the manner in which the note was originally drawn. Nor is it a material allegation of the partnership, if assumed to be direct and positive. The only material question in that respect is as to the existence of the partnership at the date of the indorsement to the plaintiff. But conceding the averments in the complaint to amount to a sufficient allegation of the partnership, then the material question is, are the defendants all liable as indorsers ? The mode in which the indorsement was made by them, whether as partners or otherwise, is immaterial. The answer denies “ the indorsement in the complaint alleged.” The substantial issue being as to the fact rather than to the mode of the indorsement, it was incumbent on the plaintiff to prove that all the defendants united in indorsing the note. The denial being general, following the language of the complaint and controverting the indorsement alleged therein, must be considered as possessing all the breadth and amplitude which can be attributed to the allegations of the complaint. (Wally. Buffalo Water Works, 18 N. Y., 122 ; Williams v. Hayes, 20 id., 58 ; Seeley v. Engell, 3 Kem., 542.) If the complaint alleged that Harrison, through representation as a partner, indorsed the note, then the answer denied it, and the proof offered that he was no partner was within the scope of the denial. If the answer were uncertain as to whether it was intended to apply to the fact or to the form of the indorsement alleged, the plaintiff’s remedy was by motion. -
    
      Edgar Van Winkle, for the respondent.
   Wright, J.

There is but a single question in the case, viz.: whether it was error to exclude evidence that the defendant, Harrison, had never been a member of Conklin, Inslee & Co. The action was against a manufacturing corporation as the maker, and the firm of Conklin, Inslee & Co., as indorsers of a promissory note. It was upon a partnership and not an individual indorsement of the persons named as constituting the firm. Unless the individuals named in the complaint were partners, the action would not lie. It was material', therefore, to allege a copartnership, and if the allegation was controverted by the answer, to prove.it on the trial in order to maintain the action. The complaint alleged that the note was made payable to the order of the defendants, the Conklins, Inslee and Harrison (who were trading and doing business at the city of Brooklyn, under their partnership name or firm of Conklin, Inslee & Co.), and that it was afterwards, and before it became due and payable, indorsed by them, by their said partnership name; and that the said firm of Conklin, Inslee & Co. had due notice of its presentment to and non-payment by the makers. This amounted to an express allegation that the note was indorsed by a firm doing business under the name of Conklin, Inslee & Co., and that the defendants at the time composed such firm. In the answer (Harrison, himself, appearing and joining in it, although not served with process) the allegation of partnership of the defendants was not controverted, or that they did not compose the firm of Conklin, Inslee & Co. • It merely denied the fact of indorsement of the note, and any knowledge or information sufficient to form a belief as to whether the defendants were ever notified of its presentment and non-payment. Bor the purposes of the action, therefore, the allegation of the partnership of the defendants was to be taken as true. (Code, § 168.) The denial in the answer of “ the indorsement in the said complaint alleged of the promissory note therein set forth,” is a mere denial of the writing, and not of the partnership, and was obviously1 so intended.

The defendants not having denied the allegations that the defendant, Harrison, was a partner or member of the firm of Conklin, Inslee & Co., it was too late at the trial to offer to prove it,.as no such issue was before the court. It was not ' error, consequently, to overrule the offer.

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

J udgment affirmed.  