Evening journal., 1898-02-22
TEXT OF THE CHARGE
Lawyers Interested In the Fea-
lures of the Terry-Platt Case.
OF VAST INTEREST TO PARTNERS

BY CHIEF JUSTICE LORE, WHO
VOICED THE OPINION OF THE
ENTIRE COURT.
Probably the most important charge
| delivered by the Superior Court within
the past few months was chat handed
down by Chief Justice Charles b. Lore
| in the case of William ii. Terry VS.
John e. V. Platt and David w. Elkin-
/ ton, partners, late trading as Platt &
Elkinton. 1t is as fellows;
Gentlemen Of the jury: This Is an
action of assumpsit, on two promissory
notes, each note being for the sum OF
$500, and alleged TO have been made by
| John u. v. Platt and David WI Elkin-
ton, late trading as Platt q Elkinton,
/ payable to the order OF William III.
/ Terry, the plaintiff. One note bears
date January 81, 1892, payable at
eleven months thereafter, and is signed
'Platt & Elkinton, on which interest is
claimed from December 81, 1898. The
other note is dated September 5, 1892,
payable at one month thereafter, and
Is signed Buford Mills, Platt & Elkin-
ton, on which interest is claimed from
January 5, 1894.
1T is alleged that these notes repre-
sent money loaned by the plaintiff to
the said Platt g. Elkinton, defendants,
as cO-partners, TO be used IN and about
the partnership business
The defendant, ElIuinton, resists re-
oovery on several grounds; some going
to both, and others to only one of the
said notes.
'''rhe first defence is that the notes
were made and delivered by and
through the fraud and collusiOn Of the
plaintiff and the said John e. Y. Platt,
one of the defendants. Upon this de-
fence OF fraud, the law is we'll stated
In the case OF Mears & Son VS. Waplee
8. Hous, 619. Fraud is never pre-
sumed to exist On the contrary II
must be clearly established by the evil
dence. For where the circumstances at.
: tending the transaction are of a doubt.
full character merely. or raise but
= / bare suspicion of fraud in regard u
the parties charged Herewith, they viii
I not be sufficient evidence of the fact
| The circumstances relied on must b
OF such a nature as to raise more thai
: a mere suspicion of fraud; they mus
be of such significance and force a
clearly to establish the fact in TIL
! Judgment Of the jury. It is not neces
( sary, however, that the proof shoul'
l be direct and positive, IT win be suffi
\ cient If the circumstances disclosed b.
. the evidence, manifestly show tina
fraud has been practiced by the party
b. The burden Of proving such fraud
1. the satisfaction Of the jury Is upon tn
y defendant, who sets II up as a defenci
4. and II not so proved, the plaintift
/, entitled to recover upon THAT ground.
1T is objected again, that thes
= notes were both made and delivere
4, by the said Plat, In the firm name,
- secure the individual Indebtedness
Y the said Platt TO the plaintiff. TerT.
I. with the knowledge Of the said plaiI
" tiff. If the jury believe from the ev
Y dence that the notes were so made an
I, delivered, the plaintiff may not recove
y y The law viii not permit such know
perversion of partnership property I
private persons. But to defeat recover
4. on this ground, the jury must be satil
= fed from the evidence that there ws
:. such peTversion OF partnership prol
4 erty, and that 1t was known 10 tf
plaintiff, Terry. The presumption
~ LAW Is, that a promissory note made
~ the name OF a partnership, is for
~ debt of the partnership, and is bindir
- fupon 1t as SUCH Baxter vs.. Plunkett
~ Hous, 452.
Again; recovery upon the Bufol
- Mills, Platt & Elkinton. note dats
Se September 5, 1892, is resisted for "a
reason that this suit Is instituts
against Platt & Ellxinton, and that tn
note is signed and purports 10 ma
been made by Buford Mills Platt
llt T7IlrfnfoV, The dofandar rH I1lkHufou q
ny leges that there were odistinct and I
~ dependent partnerships psexistingbebwe
~ himself and the said John Z. V Plat
one was known as the Platt & Elld
ton partnership; the other under 4
us name OF Buford Mills Platt & Elki
4 ton partnership.
l- If the jury is satisfied from 4
proof in this cause shat the
A were two distinct and lhdepende
IN partnerships as alleged, the plai
~ tiff cannot recover in this action.
~ that note dated September s. 1892, ma
~ and signed by the Buford Mills Pli
~ & Elkinton; but as to this objection
az, plaintiff would be entitled to recover
ne the other note dated January 81, 18
~ made and signed by the Platt & Elk
le ton partnership, the last named bel
~ the partnership against which this s.
IN is brought. II you should find a "
dict for the amount of the last M
only, on the ground that there w
two distinct partnerships, you m
OFT state that fact in your verdict.
nj IF, however. you believe there v
only one partnership, engaged in bu
ness as one branch thereof in M
chandising, as Platt & Elkinton, a
are as another branch in the milling bu
: ness, as Buford Mills Platt & Elk
ton, the plaintiff would be entitled
ay. recover upon both notes, so far as Z
!. objection goes; as the addition of
ford Mills to the firm name in 81
sht case would amount only to matter
m description in distinguishing diner
'st- branches OF the business of one firm.
Again. it is objected by the defe
ant, Elkinton, that the note sigl
Platt & Elkinton, dated January
get 1892 was made and delivered on I
'em day, which was Sunday. and for I
the reason no action can be maintail
thereon
l, This court, at the last Novem