Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-02-23
SUPREME COURT DECISIONS
Nashville, December Term, 1862
Thomas III. CALDWELL, Attorney
General and Reporter,

| McElroy, surviving partner, etc, VS.. Malesr.
S. NJ. McEhOy and John V. Nc
Kinney, were partners in the Drug
business in Fayetteville, and as such,
transacted business under the firm name
of McElroy & Mckinney.
This finn was dissolved and notice
thereof given by publication in a news
paper published in the town on the 18th
day of February, 1858.
/ On the I'd of December, 1858, Nc
Kinney executed promisory note il the
name of the firm, to one Robert MeMillon,
due one day after date, for $500 borrowed
money, bearing interest at the rate of ten
/ per cent.
On the 22d of December, 1859, Malear
paid to McMillOn, at the business desk of
Mckinney and in his presence, 800 upon
said note, and the same was credited
| upon the note.
One George B. Boyles was appointed
| by the members of said firm in October,
1859, sole agent, to wind up the business
thereof, and as such, took into his pos
session the books and papers of the firm.
On the 30th of January, 1860, Boyles
settled with McMillon and paid him the
interest then due upon the note, and took
up the same. A portion of this payment
was in an account in favor of the firm
against Mention.
Mckinney died, and this suit is brought
by Malear against McElroy, the surviving
partner, 70 recover the money paid by
him to Mention on the 22d of December,
1859.
There was verdict and judgment in the
court below in favor of the plaintiff be-
low. A motion for a new trial having
been Overruled, the defendant below has
appealed in error to this court.
Various grounds of error have been
assigned in argument.
1t is insisted Meler cannot recover,
because the note upon which the money
was paid contained upon its face an lie
gal stipulation, to-wit: the payment of
ten per cent interest.
We think there is nothing in this obiec-
ton. Melear's right to recover does not
depend upon the validity of the note, or
the right of McMillOn to enforce the col
lection of the money, but upon the fact
tlrat the payment was made by him at the
instance of the makers of the note and
for their use-and it can make no differ
ence to him whether the claim of McAIil- |
lon against the firm was just or unjust,
valid or invalid, so the payment itself was
not in violation of law.
Another ground of error relied upon is |
that the Circuit Judge erred in excluding |
certain testimony Offered by the defend |
ant below.
We think this objection cannot be |
maintained.
BOyles, the agent, was examined as a
witness for the defense.
After proving the settlement with Nc
Million, and the payment by him Of the
balance due upon the note, the defendants
counsel asked the Court ''tO allow the |
witness to state the circumstances under |
which the said payment was made"
which the Court refused to do.
Il was certainly competent for the de-
PENDANT, after proof of the settlement
and payment, to prove circumstances
constituting part Of the res gestG for
the purpose of explaining the transaction.
But no question was prOpOundcd the
witness, nor is it otherwise indicated that
the circumstances which the court was
asked to allow the witness TO detail, con-
stituted part of the transaction, or were
relevant to the issue.
Nor can we see that the action of the
court. even if ii were erroneous, was
error effecting the merits of the contro-
versy, or that the plaintiff in error was
prejudiced thereby.
The note in this case was executed by
Mckinney in the name of the firm after
the firm was dissolved, and from all that
appears in this record he had no power to
bind the firm thereby. There is no proof |
whatever in the cause, showing or tend !
ing to show, that McElrOy ever at any
time from the commencement of this
suit, had any knowledge of the execution
of the note or Ofthe existence of the debt,
or ever in any manner ratified the act of
Mckinney; or that the money was Dor
rOwed for the use of the firm, or that the
firm ever in any manner received any
benefit from the same. -
Mckinney having no power to bind the
firm, before McElroy can be made liable it
must be shown that he has in some manner
ratified the act. That being shown it would
then become the debt of the firm and this
ratification may have been before or after
the payment by Malear. If McElroy has
ratified the act of Mckinney, since the pay
ment by Malear at the instance of Mckinney |
then be would be liable, but as already |
stated there is no evidence in this record Of !
such ratification.
The agency of Boyles was ''to wind up
the business of the firm" as agent for |
this purpose he had no power to create |
debts, and hence could not by any act he |
could perform ratify the unauthorized act !
of one Of the partners, so as to make it |
binding upon others.
And there is no evidence in the case !
tending to show that McElroy ever had |
any knowledge of, or acquiesced in, the
acts of the agent in paying the balance
due upon the note, and taking up the |
same.
We are therefore of the opinion there is
no evidence to support the verdict, and
that the Circuit Court erred in refusing q |
new trial.
Let the judgment be reversed and the |
cause remanded.
HAWKINS, Judge.