*Whitaker, impleaded, &c. vs. Brown.
Where a note is given by a partner in the name of a firm for money received by him individually, the other members of the firm are not liable unless the money is applied to the use of the firm, with their knowledge and approbation.
Error from the Yates common pleas. Brown sued Whitaker and Norcott before a justice and obtained judgment. Whitaker, who alone appeared, appealed to the Yates common pleas, and on the trial in that court, the following facts appeared: The suit was on a promissory note for $26,25, given by Norcott in the name of “ Norcott & Co.,” a firm of which Norcott & Whitaker were the partners, and who carried on the grocery business. The note was given for the balance of rent collected by Norcott as the agent of one Roy, except seventy-five cents, the price of two turkeys left by Roy in the grocery of Norcott & Whitaker to be sold. The note bore date 23d August, 1828, was payable to Roy or bearer, no time of payment specified, and was transferred to. the plaintiff in the autumn of 1829. The rent collected by Roy accrued between May, 1826, and May, 1828, being an annual rent of $30, upon certain premises belonging to Roy; the sum of $25 of the first year’s rent was paid by the tenant in repairs, and the residue and the rent of the succeeding year were paid quarterly, and received by Norcott. A few days after, the premises, the rent of which Norcott collected, were let for the second year, Whitaker applied to Roy to loan the firm $50, to pay an execution then in the hands of the sheriff against Whitaker & Norcott. Roy did not loan the money but. a few *77days thereafter he told Norcott he might collect the rent as it became due, and use it in the grocery business, and Roy testified that he would not have loaned the money upon Norcott’s personal responsibility. The counsel for the defendant requested the common pleas to charge the jury to find for the defendant, unless they were satisfied that the rent received by Ñorcott, and for which the note was given, was actually applied by Norcott to the use of the partnership, with the consent or privity of Whitaker. *The court refused so to charge, and the jury found for the plaintiff. The defendant having tendered a bill of exceptions, sued out a writ of error.
H. Welles, for plaintiff in error.
R. N. Morrison, for the defendant in error.
By the Court,
Sutherland, J.
The note was transferred to the plaintiff after it became due, and was of course subject to any defence which existed against it in the hands of the original payee. Whitaker, who. alone appeared and defended the suit, contended that the note was given for an individual debt of Norcott to Roy, for which Norcott had no authority to give the partnership paper. There is no circumstance whatever in the case to show that Whitaker had any knowledge of the arrangement between Roy and Norcott, by which the latter was authorized to collect the rent due to Roy and use it in the grocery business, either before or after such arrangement was made, or that Ñorcott applied the money to the use of the firm. The only fact from which it was supposed that inference could possibly be drawn was, that some time before, Whitaker had ‘applied to Roy for a loan of $50 for the partnership, but Roy declined making the loan. How long this was before the note in question was given, does not appear; and there is nothing to authorize the conclusion that there was any connection between the two transactions. I think, therefore, the court should have charged, as they were requested by the defendant’s counsel, that the plaintiff could not recover unless Ñorcott applied the money for which the note was given to the use óf the firm, and with the knowledge and approbation of Whitaker. This was the doctrine distinctly held by this court in Jaques and others v. Marquand, 6 Cowen, 497, a case very analogous to this, so far as the application of this principle is concerned.
Judgment reversed, and venire de novo.