Boylston National Bank v. Kilburn Et Al.; Same v. Same; Bristol County National Bank v. Same

Rockingham,)

Nov. 5, 1907.

Boylston National Bank v. Kilburn & a. Same v. Same. Bristol County National Bank v. Same.

As against a bona fide holder for value without notice, a partnership is liable upon an unauthorized acceptance of a negotiable draft in the name of the firm by one member thereof.

Assumpsit, against the acceptors of negotiable time drafts. Facts agreed. The plaintiffs are bona fide indorsers and holders of the drafts for value, having obtained them'before maturity, in the regular course of business, without knowledge of any infirmity or of facts which would put them upon inquiry.

The defendants filed the following brief statement of defence: At the time the name W. H. Kilburn & Co. was signed to the drafts declared on, that concern was a copartnership composed of William H. Kilburn and Oscar E. Smith, who were engaged in the business of buying and selling merchandise, and the scope of the partnership was limited to that business. Neither partner had the right or authority to sign the name of W. H. Kilburn & Co., or to pledge the credit of the firm, for any other purpose than to carry on said mercantile business. The acceptance of the drafts, as signed by W. II. Kilburn & Co., was by Kilburn, was without the knowledge or consent of Smith, and was not within the scope of the partnership authority conferred upon Kilburn.

The defendant Smith has no defence, except as set forth in the brief statement. At the April term, 1907, of the superior court, Wallace, C. J., ruled that the brief statement did not contain a defence and found a verdict for the plaintiffs, subject to the defendants’ exception. If the ruling is erroneous, the case is to stand for trial; otherwise, there is to be judgment on the verdict.

Edward H. Adams and Arthur O. Fuller, for the plaintiffs.

Ernest L. Gtuptill and Page Bartlett, for the defendants.