Gammon v. Huse

Mr. Justice Dickey delivered the opinion of the Court:

Counsel for appellant take the position, that unless the special findings of the Appellate Court form, of themselves, a sufficient basis for the verdict, the judgment must be reversed; that the finding that “the evidence sustains the verdict, ” is merely an inference of law drawn by the Appellate Court from the special findings of fact which precede that finding, and thereupon attempts to show that the special findings are an inadequate foundation for the judgment. The statute does not authorize the Appellate Court to incorporate into the record any special finding of facts, except in cases where the same is different, in part at least, from the finding in the circuit court. Were this otherwise, we can not concur in the construction placed upon this record by counsel for appellant. The Appellate Court find, generally, that “the evidence supports the verdict. ” That general finding must stand, unless there be some special finding which is ■ inconsistent with the general finding. We find no such inconsistency.

If, as found, these four men were partners at the giving, of the note, there is nothing in the contract of April 4, 1870, made between Gammon and Huse, which forbids the- giving of this note so as to charge all four of the partners. The very words of that contract imply that the parties at that time contemplated that' “indebtedness of said firm” would-“be contracted in the future, ” “for which the said E. H. Gammon” would “be lawfully holden; ” and as between the par

It is insisted, also, that this note does not bind Gammon, because the firm name was signed by Orvis, without the consent of Gammon; and it was provided by the original articles of partnership, of September, 1868, that “Orvis is not to * * * give the firm note without the consent of E. H. Gammon.” To this suggestion it is answered, that the payee of the note had no notice of this provision in that contract. Appellant, however, replies, that Obadiah Huse, being. a party to that contract, had notice of the same; and inasmuch as he acted as the agent of the payee of the note in making the loan and accepting the note, notice to the agent, in effect, is notice to the principal.

There is evidence tending to show, and the jury have found, that for a long time before the giving of this note, in the ordinary business of the- firm, that provision had been habitually disregarded, without objection by Gammon or any other member of the firm; and the- course of business was such that it is not at all probable that this provision was borne in mind by Obadiah Huse, or thought of, at the time when the note was given and accepted; There is no proof that knowledge or notice of that feature of the contract was acquired by the agent in the transaction of the business to which his agency related, or that the same was, at that time, really known to him, or that the same was present in the mind of the agent while performing his agency. The fact that he knew of this provision of the contract two years before the transaction, is not sufficient to charge his principal with notice of the same.

It may, perhaps, be doubted whether the same general rules as to notice to an agent can properly be applied to a case where the agent of the party to he charged with notice constitutes one of the parties with whom the party to be so charged is contracting. Obadiah Huse was not only the agent of the payee of this note, hut he was one of the makers, —one of the parties with whom she contracted. Even if specific notice of this feature of the partnership contract had been given to Obadiah Huse at the time of the giving of this note, it may, perhaps, he seriously questioned whether the reasons for the rule (that notice to an agent is notice to his principal) could have any application to this ease.

Nor do we think that any just ground of complaint is found in the ruling of the court in admitting testimony, that at the time of the contract of April 4,1870, Gammon agreed to let his name remain as a member of the firm. Such proof did not vary the terms or conditions of the written contract. As already suggested, the proof is in harmony with the necessary implications of the written contract. It merely shows a separate concurrent contract (which may have constituted part of the consideration or inducement to the written contract), having no relation to the terms, conditions or subject matter of the written contract, and in no proper sense constituting a part of it.

Finding no error in the judgment of the Appellate Court, the same is therefore affirmed.

Judgment affirmed.