This was a suit by the defendants in error against the plaintiff in error on a note not under seal. The note was as follows: *Page 1490
"One year after date I promise to pay to the order of myself or bearer $5,000.00
FIVE THOUSAND NO/100 Dollars
at any bank __________, for value received, with interest at the rate of eight per cent. per annum until paid, together with reasonable attorney's fee, if given after maturity to an attorney for collection.
G. E. Curry."
It appears from the record that the defendant was represented in the court below by one entirely ignorant of the law of pleading and not possessed of great knowledge of the English language. The transcript of the record contains no bill of exceptions, probably because counsel who sued out the writ of error here was not connected with the case until after the judgment had been obtained and conditions were such that he was compelled to rely upon the record proper.
It is not necessary to discuss the several so-called pleas to which demurrers were sustained. There were two sets of such pleas. The second plea of the second set of pleas reads as follows:
"For a Second Plea the defendant says, that the said note or said alleged note was never delivered to the Plaintiffs but on the other hand was left with the Plaintiff, Richard R. Wright, Srl. 'IN ESCROW' to be delivered to the said Plaintiffs or the duly elected officers of a Negro Bank to be established by the said Plaintiffs and their associates, in the City of Jacksonville, Florida, if and when said Bank had been opened in the City of Jacksonville, Florida."
While this plea is crude and deficient, from it may be reasonably culled the statement of a good defense to this action. The plea alleges that the note was delivered in escrow to Richard R. Wright, Sr. Richard R. Wright, Sr. *Page 1491 appears to be the senior partner of the co-partnership instituting this litigation. Where notice is obtained by one partner in reference to any matter relating to a transaction within the ordinary scope of the firm's business it is notice to all partners. Overall vs Taylor, 99 Ala. 12, 11 So. 738; Renfro vs Adams, 62 Ala. 302; Loeb vs Stern, 198 Ill. 371, 64 N.E. 1043; Patterson vs Seaton, 70 Iowa 689, 28 N.W. 598; Rhett vs Poe, 11 Law. Ed. 338.
It is also well settled that the acts of one partner in transacting matters and business for the firm are presumed to be known to all the members of the firm and, therefore, any infirmity in regard to the note here sued upon which was known to Richard R. Wright, Sr. is presumed to have been known by all members of the partnership. The partnership stands as the original parties dealing with the defendant. See German-American Bank vs. Magille, 102 Wis. 582, 78 N.W. 782.
It is well settled that no contract arises on a bill or note until the delivery of the instrument and, until such delivery, it remains revocable and unenforceable. Wells vs Van Sickle, 64 Fed. 944; Hopper vs. Eiland, 21 Ala. 714; Atwood vs Atwood,68 Conn. 579; Reese vs Fidelity Mutual Life Association,111 Ga. 482, 36 S.E. 637. It is also well settled that, "the delivery may be a conditional one to take effect only on the happening of a future contingency." Ware vs. Allen, 128 U.S. 590, 32 Law Ed. 563 and cases above cited.
"A delivery may be shown to have been conditional or for a special purpose only and not for the purpose of transferring the property in the instrument as between the immediate parties or one not a holder in due course." Sayre vs Leonard,57 Colo. 116, 140 P. 196.
The fourth assignment of error challenges the validity *Page 1492 of the judgment for attorney's fees. The declaration does not support the judgment for attorney's fees under the rule established in the case of Brett vs. First National Bank of Marianna, 97 Fla. 284, 120 So. 554, and Brooks vs. Roberts,97 Fla. 374, 120 So. 765, and which has been uniformly followed since the filing of opinions in those cases.
For the reasons stated the judgment is reversed and, as it is apparent from the record that the defendant may have a meritorious defense to this action, it is directed that he be allowed to plead further.
Reversed and remanded.
ELLIS AND BROWN, J.J., concur.
WHITFIELD, P.J., AND TERRELL, J., concur in the opinion and judgment.
ON PETITION FOR REHEARING.