Blake v. Wheaton, 1 N.C. 70, 1 Tay. 70 (1799)

Nov. 1799 · North Carolina Superior Court

1 N.C. 70, 1 Tay. 70

Blake and Green versus Wheaton.

Two partners may draw a note payable to one of them, and the assignment by him will bind the other.

WHEATON and Tisdale, merchants and co-partners in trade,

drew a note payable to Tisdale, one of the firm, or order: he indorsed it to the plaintiffs, who brought the present suit against Wheaton and obtained a verdict.

Jocelyn moved in arrest of judgment,

that the note was made payable by D. Wheaton and J. Tisdale, under the firm of Wheaton and Tisdale, to J. Tisdale, whereby the said James became the payee and payor:—that the said James could not have maintained a suit to recover the contents of the note; neither can Blake and Green, as his assignees; for he cannot transfer that right to another which he possessed not himself.

By

the Court.

The paper, on which this suit is brought, should be considered as an authority or power given by both partners to Tisdale, to draw on the partnership effects, in favour of some third person, and as an engagement of the partners that such draft should be paid. This amounts to an acceptance, and places the contract upon the footing of an order drawn by Tisdale, and accepted by himself and partner, in favour of the plaintiff; which is certainly valid. It is not unusual in mercantile transactions, for partners to draw, payable to themselves, or their order; Douglas, 653: and for one, or both to indorse to some third person; then, two may with equal propriety promise to pay to the order of one.

Reasons over-ruled.