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MCMICKEN V. WEBB, 47 U. S. 292 (1848)
U.S. Supreme Court
McMicken v. Webb, 47 U.S. 6 How. 292 292 (1848)
McMicken v. Webb
47 U.S. (6 How.) 292
Where a promissory note, payable to a firm, was signed by one of the partners in the firm together with two other persons, and suit was brought upon it against these two other persons in the name of the payee partner upon the ground that the note was intended for his individual benefit and that the insertion of the name of the firm as payees was an error, it was clearly his duty to prove such error upon the trial.
If these two other persons were merely sureties (a fact for the jury), proof of such error would not make them liable beyond the terms of their contract unless they were privy to and agreed to the same. Neither a court of law nor equity will lend its aid to affect sureties beyond the plain and necessary import of their undertaking. This is the doctrine of this Court, of the state courts, and of England.
The payee partner having brought into the evidence the terms upon which the partnership was dissolved, by which it appeared to be his duty to collect the assets, pay the debts, and settle the concerns of the partnership, it was competent for the jury to judge whether the note was given provisionally and designed to abide the settlement of the affairs of the firm, and if so then it became necessary for the payee partner to prove the fulfillment of these duties before any right of action upon the note accrued to him.
The note being drawn by one of the partners payable to his own firm, this drawer partner was entitled to one-half of it, and the obligation of the sureties was diminished pro tanto.
Where the plaintiff excepted to the opinion of the court, which opinion was more adverse to the defendants than to the plaintiff, this Court will not, at the instance of the plaintiff, reverse the judgment, although there may have been error in the instructions, provided that error consisted in giving the plaintiff too much.
This case was formerly, in a preliminary stage of it, before this Court, and is reported in 36 U. S. 11 Pet. 25.
The facts of the case are sufficiently set forth in the opinion of the Court.
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