
    Nelson Millerd et al., Respondents, v. William B. Thorn, impleaded, etc., Appellant.
    (Submitted April 17, 1874;
    decided April 28, 1874.)
    The party holding the affirmative upon an issue of fact has the right, upon trial, to open and close the proof, and to reply in summing up the case to the jury.
    This is a legal right not resting in the discretion of the court, and a denial thereof may be excepted to, and the ruling reviewed upon appeal from the judgment.
    Plaintiffs’ complaint alleged, in substance, that they were partners, and that they sold and delivered to defendants certain goods, etc. Defendant T., who alone appeared and defended, denied the allegation of partnership, but admitted that defendants purchased of plaintiffs the goods set forth in the complaint. The answer then set up an affirmative defence. Held, that the denial of plaintiffs’ partnership was immaterial, as, if the affirmative defence failed, they were entitled to judgment whether partners or not; that defendants had the affirmative and the right to open and close the proof, the denial of which was error.
    Where a creditor of a partnership, after dissolution thereof, knowing that one or several of the copartners have agreed with the others to assume and pay the debts of the firm, takes .the negotiable notes of those who should pay, in payment of his debt, and thus extends the time of payment, he thereby discharges the other partners.
    Appeal from judgment of the General Term of the Supreme Oourt in the first judicial department, affirming a judgment in favor of plaintiffs, entered upon a verdict.
    This action was brought to recover an account for goods sold and delivered.
    The complaint alleged that plaintiffs were copartners, doing business under the firm name of hi. Millerd & Co., and that “ said plaintiffs sold and delivered to the defendants,” who were copartners, the goods and merchandise described. Defendant Thorn alone appeared and answered. He denied any information as to the partnership of plaintiffs and therefore denied the same. He admitted the partnership of the defendants and the purchase by the firm, of plaintiffs, of the goods stated in complaint; and for a further answer he alleged the dissolution of .the defendants’ copartnership, defendant Smith buying out the stock and continuing the business, he also agreeing to assume and pay all the partnership debts, including plaintiff’s. That afterward, plaintiffs, with knowledge of these facts, agreed with Smith to accept, and did accept and receive twenty-five dollars in money, and his individual promissory note to the amount of the balance, in discharge of the firm indebtedness.
    At the commencement of the trial the counsel for defendant Thorn claimed to have the affirmative of the issue and was entitled to the opening and closing speech to the jury. The court decided that the plaintiffs had the affirmative, and were entitled to open and close the ease, to-which defendant’s counsel excepted. Defendants gave evidence tending to prove the allegations of the answer.
    The counsel for the defendant Thorn requested the court, among other things, to instruct the jury, that by the dissolution of the firm of William B. Thorn & Co., and the transfer of all the property of said firm to the defendant, and the assumption by him of the payment' of the debts of said firm, including the account mentioned in the complaint, the defendant Smith became the principal debtor, and the defendant Thorn the surety in respect to such indebtedness; and that if the plaintiffs, with notice of such transactions, took Smith’s note for the indebtedness mentioned in the complaint, without the knowledge or assent of the defendant Thorn, they thereby extended the time of the payment of said indebtedness to the defendant Smith; and consequently released and discharged the defendant Thorn from his liability to pay such indebtedness. The court refused so to charge and defendant’s counsel excepted.
    The court submitted to the jury the question, whether the note of Smith was given and accepted by plaintiffs in payment of the indebtedness.
    The jury rendered a verdict for plaintiffs for the amount claimed.
    
      J. A. Shoudy for the appellant.
    Defendant Thorn clearly had the affirmative of the issue. (Hoxie v. Green, 37 How. Pr., 97; Huntington v. Conkey, 33 Barb., 218; Lindsley v. European Ptr. Co., 3 Lans., 176; Elwell v. Chamberlin, 31 N. Y., 614.) The facts alleged in the answer were a perfect defence in Thorn’s behalf. (Coll. on Part., 325, 326; Story on Part., §§ 155, 156, and cases cited in note 1 to § 135; Evans v. Drummond, 4 Esp., 89, 91; Chitty on Con., 262, 263; Arnold v. Camp, 12 J. R., 409 ; Wydell v. Luer, 3 Den., 414; Gandolfo v. Appleton, 40 N. Y., 541.) The facts and circumstances left no question for the jury. (Arnold v. Camp, 12 J. R., 409; Evans v. Drummond, 4 Esp., 91.) By the dissolution and transfer Smith became the principal debtor and Thorn the surety in respect to partnership debts. (Waddington v. Vreedenburgh, 2 J. Cas., 227; Williams v. Bush, 1 Hill, 625; Crafts v. West, 4 N. Y., 604.) By the settlement with Smith, Thorn was released and discharged. (Place v. McIlvaine, 38 N. Y., 96; Bk. of Albion v. Burns, 46 id., 170, 175; Oakley v. Paskeller, 10 Bligh, 548; Colgrove v. Tallman, 2 Lans., 97, 101; Marsh v. Pike, 10 Paige, 597.)
    
      F. A. Paddock for the respondents.
    Taking the note from Smith will not be considered a payment of the debt, unless it be proved that it was expressly agreed to be taken as payment and at the risk of the creditor by the original debtor. (Muldon v. Whitlock, 1 Cow., 306, and cases cited; Smith v. Rogers, 17 J. R., 340; Coles v. Sackett, 1 Hill, 516; Highland Bk. v. Dubois, 5 Den., 558; Noel v. Murray, 13 N. Y., 167; Bates v. Rosekrans, 37 id., 409; Gandolpho v. Appleton, 40 id., 533.)
   Grover, J.

The party holding the affirmative upon an issue of fact has the right, upon trial, to open and close the proof, and to reply in summing up the case to the jury. This is a legal right not resting in the discretion of the court, and when denied the denial may be excepted to and the ruling reviewed upon appeal from the judgment. (Lindsley v. The European Petroleum Co., 3 Lansing, 176; Elwell v. Chamberlin, 31 N. Y., 614.)

The defendant in this case held the affirmative of the issue. The admission in the answer that the defendants purchased the goods of the plaintiffs as alleged in the complaint, and became thereby indebted to them therefor, as thus alleged, rendered the question whether the plaintiffs were, at the time of such sale, copartners, wholly immaterial. The only facts to be tried were those alleged by the affirmative defence contained in the answer of the defendant Thorn. Upon a failure by Thorn to give such evidence to sustain this defence as made a case proper for the consideration of the jury, the plaintiffs were entitled to judgment upon the pleadings for the amount claimed. The copartnership of the plaintiffs was the only fact denied by the answer. The plaintiffs were entitled to judgment upon the failure of the defendant to prove his affirmative defence, whether they were copartners or not. There was no occasion to prove this, and testimony upon the point should have been rejected as immaterial. The judge therefore erred in denying the defendant the right of opening and closing the proof, for which the judgment must be reversed, unless it appears from the case that the defendant was not prejudiced by the error. This would so appear if there was no question in the case that should have been submitted to and determined by the jury, and if it was the duty of the judge to direct a verdict for the plaintiffs for the amount claimed by them.

The defence set up by the defendant Thorn was, that after the purchase of the goods from the plaintiffs by the defendants, the defendants dissolved the partnership existing between them. That it was agreed between Thorn and his copartner, Smith, upon such dissolution, that the latter should assume and pay all the debts of the firm, including that to the plaintiffs for the goods in question. That these facts were communicated to the plaintiffs. After which they received from Smith his note on time in payment of the demand. The defendant Thorn gave evidence tending to prove these facts, such as the court held (rightly, I think) made a case that must be determined by the jury.

When a creditor of a partnership after dissolution thereof, knowing that one or several of the partners have agreed with the others to assume and pay the debts of the firm, takes the negotiable notes of those who should pay, in payment of the debt of the firm, he thereby cancels the claim against the firm, and discharges the other partners. (Story on Partnership, 276, 277 and 278; §§ 155, 156 and notes; Collier on Partnership, book 3, § 3, and cases cited ; Arnold v. Camp, 12 J. R., 409; Waydell v. Luer, 3 Denio, 410.)

I think the defendant was entitled to have the jury instructed, as substantially requested by him, that if the plaintiffs extended the time of payment of the debt to Smith until the note given by him therefor matured, Thorn was thereby discharged. By the agreement of Smith upon the dissolution of the partnership between the defendants,, to assume and pay the debt due the plaintiffs, he became, as between him and Thorn, principal debtor, and the latter his surety for payment. If the plaintiffs, with knowledge of these facts, made a valid agreement with Smith to extend the time of payment, they thereby discharged Thorn. (Cogrove v. Tollman, 2 Lansing, 97; Oakeley v. Pasheller, 10 Bligh’s Hew Parliamentary Reports, 548.)

The judgment appealed from must be reversed, and a new trial ordered; costs to abide event.

All concur.

Judgment reversed.  