
    SAMUEL D. LINN vs. JOHN N. HOOVER Et Al.
    1. Where a suit is brought against two defendants, upon a joint note, the plaintiff must prove his case as to both; he cannot enter a nolle prosequi as to one, on failure to prove the note against him.
    2. To make a payment amount to or imply a new promise, it must appéar that the defendant made the payment, and that it was made on account of the debt in controversy.
    At Law.
    No. 28,579.
    Decided March 12, 1888.
    The Chief Justice, and Justices Cox and James sitting.
    Motion for new trial on exceptions.
    The Case is stated in the opinion.
    Messrs. Sam’l E. Linn and J. J. Johnson, for plaintiff:
    If a partner contracts in the n,ame of the firm with a third party, after the partnership is dissolved, the dissolution not having been made public or known by the party at the time, the contract will be considered as being made with the firm and upon their credit. Leroy vs. Johnson, 2 Pet., 199; Taylor vs. Hill, 36 Md., 500; Graves vs. Merry, 6 Cow., 705; Ketcham vs. Clark, 6 Johns., 147; Bristol vs. Sprague, 8 Wend., 423; Little vs. Clarke, 36 Pa., 114; Johnson vs. Totten, 3 Cal., 343; Pope vs. Risley, 23 Mo., 185.
    For the protection of innocent parties a partnership continues until notice is given of the dissolution; and especially must personal notice be given to former dealers with the firm. Smith, Mercantile Law, 30; Vernon vs. Manhattan Co., 22 Wend., 192-198; Conro vs. Port Henry Iron Co., 12 Barb., 54; Wardwell vs. Haight, 2 Barb., 549.
    A single previous dealing is sufficient to give the dealer the protection of the rule. Lyon vs. Johnson, 28 Conn., 1. So strict is the law under circumstances that publication of the dissolution in newspapers, not brought home to one dealing with a partner afterwards, will not protect them. Be Krueger, 2 Low., 66.
    The trial judge also erred when he instructed the jury that the evidence did not remove the bar created by the Statute of Limitations.
    The jury are the proper judges of the effect of the evidence. The Court can only say whether the evidence is relevant to the subject-matter on trial.
    Part payment by one partner upon a firm note, after dissolution of the firm, of which the holder of the note had no knowledge, will take the case out of the Statute of Limitations. Story, Partn., sec. 161; Collier, Partn., sec. 533 Lindley, Partn., 337; Nat. Bank vs. Norton, 1 Hill, 572; Van Eps vs. Dilaye, 6 Barb., 249; Graves vs. Merry, 6 Cow., 701; Austin vs. Holland, 69 N. Y., 571; Forbes vs. Garfield, 32 Hun., 389; Buxton vs. Edwards, 134 Mass., 567; Hawley vs. Griswold, 42 Barb., 18; McCann vs. Sloan, 25 Md., 575.
    In an action on a joint and several note against one of the makers, it was held that proof of payment, by one of the others, of interest on the note and part of the principal, took the case out of the statute. Whitcomb vs. Whiting, 2 Doug., 652; Smith vs. Ludlow, 6 Johns., 267.
    Messrs. Bírney & Birney, for defendants:
    The only evidence offered to remove the bar of limitation is the entry in a book used by one Simpson in making collections, “Sept. 17, C. Hoover, $2.”
    Simpson was not produced as a witness nor was any reason given for his nonproduction.
    This entry was inadmissible. If 'the person who made the entry be living and competent to testify, he must be produced; otherwise, the entry is not -admissible for any purpose. 1 Greenl. Ev., 7th ed., sec. 115; Wilbur vs. Selden, 6 Cow., 162; note to Price vs. Torrington, 1 Sm. Lead. Cas., 571; Brewster vs. Doane, 2 Hill, 537.
    
      In Maryland the Court in one case so far relaxed the rule as to receive the entry after proof that the clerk was foreign-born, with no relatives in this country, of roaming habits, and that more than three years before the trial a letter was received from him written in Australia, and he had never been heard from since. Reynolds vs. Manning, 15 Md., 510.
    If admissible, yet the entry did not tend to prove a new promise by either of the defendants. It does not show that it is an entry of a payment, or that Charles E. Hoover is the person mentioned as “ C. Hoover,” or if a payment, that it was made on account of the note in suit. The plaintiff asks that the Court assume these facts, all of which were necessary to his case.
    There was no evidence against John Hoover., One partner cannot, after dissolution, bind his late co-partner by a promise to pay. Bell vs. Morrison, 1 Pet., 351.
    - Since no judgment could be had against John Hoover, the action could not be maintained against his co-defendant. This is always true, except where one defendant escapes under a plea of personal discharge as by bankruptcy, coverture, etc.
    When there never was a joint contract, plaintiff cannot recover against defendant. 2 Greenl. Ev., sec. 11 a; Gould, Pl., 116; 1 Saunders, 207 b, note [i], 4th Amer. ed.; Snyder vs. Finley, 1 Mac Arthur, 220.
   Mr. Justice Cox

delivered the opinion of the Court:

In this case the plaintiff sues the defendants for that the defendants, by their promissory note, now over due, bearing date on the 25th day of February, 1879, jointly and severally promised to pay to the order of the plaintiff $523.68.

It appears from the evidence that John N. Hoover and Charles Hoover were brothers and, at one time, were in partnership. The debt for which this note was given was contracted by the firm. The defendants say that the partnership was dissolved as far back as 1876. This note is dated In 1879. The debt, besides, is barred by limitations, unless it has been revived'by a new promise.

The claim on the part of the plaintiff is, in the first place, that no notice of dissolution was ever given; and, therefore, quoad the plaintiff, the partnership continued, and that Charles Hoover, one of the partners, made a payment upon the note as late as September 17, 1881, which, of course, implied a new promise, and, therefore, revived it.

The instruction given by the Court’ below was that the jury should find for the defendants, because the note was made after the dissolution of the partnership by one of the partners only, and could not bind his co-defendant, and because the evidence offered was insufficient to overcome the plea of the Statute of Limitations filed by the defendants.

The defendant, John Hoover, pleads non assumpsit and the Statute of Limitations. He denies that he ever executed the note at all. The defendant, Charles Hoover, simply pleads the Statute of Limitations.

It is quite remarkable that the note was never offered in evidence at the trial. No copy of the note is produced. It does not appear that it was signed by John Hoover at all. It does not even appear that it was signed in the partnership name. All that we have in the bill of exceptions is that the son of the plaintiff testifies that he drew up the promissory note in his handwriting and Charles Hoover signed it. He does not say it was signed in the firm name.

Charles Hoover testified that the note in question was made by him, but does not state how he signed it — whether in the firm name or his own name. The case is absolutely without any proof that John Hoover ever was a party to this note; and upon that ground alone the judge was perfectly justified in directing a verdict for the defendants.

Where the suit is on an alleged joint note the plaintiff must prove his case as to both defendants, and cannot even enter a nolle prosequi as to one on failure to prove the note against him.

But apart from that, and assuming, as it seems to have been assumed by the plaintiff’s counsel all through, that it was a firm note, the next question would be whether-there was any promise, after the period of limitations had expired, •or any act of revival by one óf the parties. All we have upon that point is that a collection clerk, named Simpson, who was employed by the plaintiff, entered in his private book 'the following language on the 17th of September, 1881: “Sept. 17. C. Hoover, $2.” The witness was not produced, as he ought to have-been, to prove the nature of this entry; but the entry was made in his private book in the course of business, and the plaintiff copied it into his own regular book.

Of course, to make a payment amount to or imply a new promise, it must appear that the defendant made the payment and that it was made on account of the debt in controversy. It does not appear that “C. Hoover” was the defendant in this case, Charles E. Hoover. Who “ C. Hoover ” was does not appear. It does not appear that the $2 payment was made on account of the note in suit. There is, therefore, a lack of evidence to connect the payment with the note in controversy.

The ruling of the Court below, we think, was correct, and the judgment below is affirmed.  