Vernon v. The Manhattan Co. business. So also, it is, when paper bearing the name of the firm, is taken by others in the course of a continuous and repeated credit, placing the parties within the direct knowledge of each other. Here the partners know, or have the means of knowing, without going out of the course of their own business, who have thus given them credit, and with whom they have thus dealt. Here then, the reason of the general rule applies, that there should be direct notice of the withdrawal of part of that united credit, to those who were known to have relied upon it, and who might be induced to rely upon it again, if left in ignorance of the change. In the present instance a note is given by Vernon & Co. to one Moore, and made payable to him. It receives the endorsement of another firm after Moore's name, and is discounted by the Manhattan Bank for Moore's accommodation. The loan is eight times successively renewed with occasional reductions, a new note of the same parties being each time substituted. It is true that each successive note was taken up by Moore, the immediate dealer with the bank, but as on each occasion a new note of Vernon & Co. was substituted, it is obvious that Moore in this acted in behalf of the makers of the notes so taken up by means of renewed paper. The first loan was for the accommodation of Moore; but the renewals were evidently alone for the accommodation of the maker who must otherwise have paid some one of these notes. Moore was then their agent, not in procuring the loan, but in making the renewals and partial payments. The notes too, must have been returned to the makers with their several endorsements, receipts or stamps upon them. They could not well be ignorant who it was that gave them this prolonged and repeated credit, and to whom the obligation of the firm was thus renewed. Allowing, however, that they were ignorant of this fact, (as the knowledge is not brought home to them in the evidence,) still the several partners had the means of knowing through Moore, who represented them in the transactions. This equally with knowledge would impose the responsibility of Vernon v. The Manhattan Co. actual notice to habitual dealers. No man is to take advantage of his own negligence. The history of the transaction strongly exhibits the equity of the rule of notice. It is not probable that after the failure of the firm thus making the original note, the notes for which all the partners were unquestionably known to be liable should be given up, and a new one, a little reduced in amount with a small cash payment, received in lieu, if it had been actually known to the bank that the only solvent and responsible member of the firm had retired from the house. Judge Bronson, in his dissenting opinion, observes that, "the jury were charged as matter of law, that under the facts of the case shown in evidence, the defendants were to be deemed dealers with the bank." This, the judge thinks incorrect, and that this was a question not of law, but of fact. The line of distinction between law and fact, is often not broadly marked. But the facts here are undisputed. There is no contradiction of evidence; no contest of probability as to who should be deemed dealers, for the jury to settle. The question is simply upon the statement of the fact of the repeatedly renewed notes of Vernon & Co. originally discounted for Moore: whether or not, under such circumstances, "these makers were dealers in the sense of the rule of law requiring actual notice to discharge such dealers from future joint and several liability?" This appears to me strictly a question of legal inference. It is analogous to the case of evidence of new promises or acknowledgements taking a debt out of the statute. If this evidence be doubtful or contradictory, that would be for the jury to pass upon; but where there is no dispute as to the facts, the true legal inference to be drawn from themwhether or not such promise or acknowledgement took the case out of the statute-is a matter of law. See opinion of Sutherland, J. 1 Wendell, 611. A decision of the supreme court of Connecticut comes still closer to this very point. In Mowatt v. Haviland, 3 Day's R. 353, that court held that when the facts supposed to constitute notice of a dissolution. Vernon v. The Manhattan Co. of partnership were once ascertained, it is altogether a question of law whether the notice was reasoable or not. Upon these grounds, I think the judgment of the court below should be affirmed, although as will have been seen, I am far from agreeing with Jadge Cowen, as to the extent to which, in delivering the opinion of the majority of the supreme court, he carries the contingent liability of partners making negotionable paper, by considering them as constructively dealing with every person through whose hands their paper may pass; for if that be the law of the land, I agree with Judge Bronson, that "no diligence in giving notice of a dissolution can save one partner from the peril of being ruined by the other." By Senator WAGER. There are three questions arising in this cause: 1. Were the defendants below, dealers with the Manhattan Company, within the rule requiring actual notice of the dissolution of a copartnership? 2. If actual notice were necessary, is such notice to be presumed from the proof given in the cause? and 3. Are the defendants liable as copartners, under the general counts upon the original indebtedness, to the extent of the amount claimed upon the note declared on? It is a well established rule of law, that copartners are bound by the acts of any of the members of the firm with all persons with whom the firm has had previous dealings, until actual knowledge of a dissolution be brought home to such persons. It may not be necessary to show by positive proof that the party had actual notice; but such circumstances should be proved as will raise a strong and almost irresistable presumption, that the knowledge of the dissolution was brought home to the party. As to all the rest of the world, except to those who have had actual prior dealings with the firm, and consequently given them credit upon personal representation, the general notice is sufficient. A publication in such cases, in one of the regular newspapers of the city or county where the partnership business was carried on, is the usual mode of giving the information, and as to persons who have not before dealt with the firm, Vernon v. Manhattan Co. is sufficient. As to persons having prior actual dealings, notice is usually given by a circular sent to all the correspondents of the house, or in some other mode, by which the knowledge of the dissolution may be brought to the creditor. In the case under consideration, it therefore becomes material to inquire, whether the parties were actual dealers as regarded each other. Was there a confidence and credit given to the firm of William Vernon & Co., the makers of the note, arising from actual intercourse and dealing, as is ordinarily understood by the terms? The action in this case is brought upon a promissory note for seventeen hundred dollars, payable to the order of John A. Moore, and endorsed and procured by said Moore to be discounted by the plaintiffs. It was the last of a series of notes, all of which had been made by the defendants, payable to Moore's order, and by him procured to be discounted at the Manhattan Bank. The notes were made for his accommodation, and he drew the money from the bank, and took up the notes when they fell due. There is no evidence in the case showing that Vernon & Co. ever knew where the notes were procured to be discounted, unless such knowledge is to be inferred from the fact that one of the series was protested for non-payment, and was shortly afterwards taken up by Moore. In protesting that note, which was the third in the series before the one prosecuted, it was necessary to make a demand upon the makers, but it need not necessarily appear on such demand to whom the note belonged. It might have been made when they were absent from their place of business, or the makers may have supposed that the note was held by the bank for collection merely. They cannot, therefore, in my opinion, be said to be actual dealers with the bank, though Moore, the endorser, may have been. There is nothing in the case. to show that any credit was given to the note in question at the bank because of the names of Vernon & Co., except that which arises out of general reputation that they were partners, a matter which is discharged by general notice or advertisement. To require them under the circumstances Vernon v. The Manhattan Co. to give actual notice as dealers, would be establishing a rule, by which partners would be constantly liable to be imposed upon after dissolution, by the acts of dishonest members of the firm. It would be requiring them to trace all their nego tiable paper through all its negotiation, from the commencement to the ending the copartnership: a burthen too unreasonable to be required by the common law. As it regards the second point above stated, I consider it unnecessary to determine whether the circumstances proved constituted actual notice in this case, inasmuch as I have come to a conclusion, from a view of all the circumstances, that the parties were not prior dealers within the rule requiring actual notice. The notice proved was therefore sufficient. The judge at the trial erred in charging the jury, as matter of law, that under the facts shown in evidence, the defendants were to be deemed dealers with the plaintiffs, and as such, that no notice of dissolution was sufficient, but actual notice. In thus charging the jury, he took from them a question of fact, which it was their province to decide. This of itself constitutes a good ground for reversing the judgment and awarding a venire de novo. No doubt can be entertained that William Vernon was liable upon all the notes of the series, with the exception of the last, which was given after general notice of dissolution. That note having been taken by the bank, without knowledge of the dissolution of the firm, and without any express agreement between the parties that it should be in discharge of the prior indebtedness, that indebtedness remained, notwithstanding the giving of the new note. The bank undoubtedly supposed that in renewing the note for the amount of the note declared on, they were to that extent merely extending the credit to the same parties before hold en. The delivering up of the old note, on which all the members of the firm were liable, cannot therefore be regarded as a waiver of the responsibility of William Vernon. To waive that responsibility, the plaintiffs below should have been shown to have acted with full knowledge of all |