It is not to be disputed that when the plaintiff put in evidence his note dated January, 1896, at which time it was admitted that Erckens was a member of the firm of Hinck & Ould, the presumption arose that it was given in the partnership business and for value; and, if that were all the case, there can be no doubt that the plaintiff was entitled to recover. But the question is whether there was any consideration for the note in suit; and, while it is not to be denied that the burden of proof in the first instance was upon the defendant Erckens to show that the note was not given for a consideration, yet it must not be forgotten that the question here is not whether he sustained that burden of proof, but whether he threw sufficient doubt upon the valuable consideration of the note to require the court to submit that question to the jury. There is no claim that any consideration passed between the parties in 1896 when this note was given, and the consideration must stand, if at all, upon that given for the original note dated on the 2d day of January, 1894.
There was no concession in the case that Erckens was a member of the firm of Hinck & Ould, which gave the note at that time. The concession was that he was a member of the firm of Hinck & Ould which gave the note in 1896 ; there was no concession, and surely there was no presumption that the firm of Hinck & Ould, which gave the note dated on the 2d of January, 1894, was composed of Hinck and Ould and Erckens, or that the original note which was given for the one in suit was given in the course of the *134business of that firm. As to this matter, the whole case was left at large when the plaintiff closed his evidence. The facts which had appeared at that time were that the firm of ITinek, Ould and Richardson had been in business from the 30th of December, 1890, until the 30th of December, 1893, at which time the firm was dissolved. The 30th of December, 1893, fell on a Saturday, and the first business day thereafter was the 2d of January, 1894. On that day, as a result of the dissolution on the 30th of December, 1893, there were given by the firm of Hinck & Ould to Mr. Richardson, w'ho had left the firm, ten notes aggregating $100,000. Two of these notes constituted the sole consideration for the note in suit, which was dated over two years later. At the time of the giving of the original notes Mr. Richardson, as the consideration for them, “ gave up ” his interest in the firm of Hinck, Ould & Richardson. Whom he gave it up to does not appear, nor does it appear anywhere in the evidence of the plaintiff that at the time he gave up his interest on the 2d of January, 1894, there was any such firm as Hinck, Ould & Erckens, or that Erckens had any relations whatever with any firm with which Hinck and Ould had any connection. So that upon the evidence, as it appeared when the plaintiff closed his case, there was an entire failure of proof that Erckens was a member of the firm which gave the notes at the time when the original notes were given. So while the note in suit was properly in evidence because Erckens was admitted to have been a member of the firm in 1896 when the note was dated, there was no evidence to show that at the time the original notes were given Erckens had anything to do with them. There was no suggestion that on the 2d day of January, 1894, Hinck, Ould and Erckens were in partnership, and no intimation that the transaction which took place between Hinck, Ould and Richardson on the second of January resulted in the transfer of any property whatever to Hinck, Ould and Erckens, or resulted in anything except the giving up by Richardson of his interests in the former firm. The evidence given by the defendant afterwards strengthened the necessary inference to be drawn from the plaintiff’s evidence that the new firm received no consideration for the $100,000 of notes, and that those notes were not given in the course of business of that firm.
In the first place there was an express provision in the articles of *135association that the only business to be done was the selling of dry goods on commission ; also that no credits should be given, nor should any loan or promise be made by either partner upon the credit of the fund, except for certain purposes, and there is no suggestion that the transaction with Richardson was one of those purposes. It necessarily appeared that the firm of Hindi, Ould & Erckens had done no business whatever when those notes for §100,000 were made; nor was there any proof that they had become the owners in any way or for any purpose of any interest in that former firm. By the express provisions of the -contract Erckens was to put in $100,000 in cash ; Hindi and Ould were to contribute their interests in the assets of the old firm. It is suggested that their interests were said to be $100,000, but the precise amount or the precise proportion which their interests constituted in the old firm is nowhere stated. These were all the facts which appeared at the time that the learned justice, against the protest of the appellant, ordered a verdict for the plaintiff. A short recapitulation will show, I think, beyond any question that at the very least they were sufficient to require that there should be sent to the jury the question whether there was any consideration for the original notes (not the note in suit). Hindi, Ould and Richardson had been in partnership down to the 30th of December, 1893 ; they dissolved their partnership on that day; as a result of that dissolution Richardson gave up (he did not sell) his interests in that firm; on the next business day after the firm had been dissolved he received from his old partners notes given in the name of the old firm for §100,000 as a consideration for the giving up of liis-interests in that firm. At the same time that Richardson had given up his interests in the old firm, thereby creating as it seems to me a necessary inference that Hindi and Ould became the owners of the assets of that old firm, they made a contract of partnership with Erckens by which they put into a new firm all the assets they had owned in the old, which the jury might have found had been “ given up ” to them on the same day; and Erckens put §100,000 in cash in the new firm upon the contract that no credit should be given, and in a business which did not require the issue of the notes of the partnership for any sum of money. It seems to me that if it should be found from these facts that the notes given on the 2d of January, *1361894, had not been given in the course of the business of the new firm, but had been given for the purchase by two of the partners of the old firm of the interests uf Richardson, another partner of that firm, no court could set aside the verdict; and, therefore, I think it is error to have ordered a verdict for the plaintiff upon this state of facts, and, therefore, I dissent from the conclusion of the court.
Van Brunt, B. J.:
I concur with Mr. Justice Rumsey upon the ground that if the original notes were given for Richardson’s interest in the old firm there is no evidence that they were given with Erckens’ knowledge or consent, and they were not given in the business of the new firm.
Judgment affirmed, with costs.