I dissent.There was evidence to justify the court in finding that the consideration for the note sued upon was the sum of ten thousand dollars theretofore loaned by the plaintiff to the firm of Hegler, Johnson & Co. The original note was signed by the defendant Johnson, and was indorsed to the plaintiff in the firm name by the defendant Hegler, and was taken by the plaintiff upon the representation that the money received thereon was to be used in payment of certain indebtedness of the firm. A check for its amount was drawn to the order of the firm, and deposited by it to its credit with the Pacific Bank, and on the same day the greater portion of the money was drawn out by. the firm and used in the payment of its promissory note. As the consideration of the note was used for the benefit of the firm, and as both partners joined in executing it in the form required to enable the firm to obtain this consideration, it became the obligation of the partnership. This evidence tended to sustain the above finding, and the superior court having determined that it was sufficient therefor, this court cannot review its weight for the purpose of overcoming the decision of that court.
The note in suit was executed in renewal of this former note, and in the same form, but the name of the maker and the indorsement of the firm were both written by the defendant Johnson. As the consideration for the original note was given and used for the benefit of the firm, and as both members of the firm united in its execution to the plaintiff in order to receive this consideration, it became an obligation of the partnership to him, irrespective of any private agreement between the partners, and irrespective of the form in which the obligation was made. The plaintiff testified that when he took the original note he had no knowledge of any such agreement, or that the money was to be used for any other purpose than that of the partnership. At the time of the execution of the *687note in suit there was nothing to put him upon notice that it was given for the individual debt of Johnson. Nothing had occurred since the original note was given to impair his right to believe that the debt evidenced by'it was a partnership transaction, and he had the right to assume that the firm regarded the note as a partnership obligation, and that the form adopted for this note had been agreed upon by them for all notes to be executed for its obligations. The defendants had continued their partnership relations and business at the same place. As a member of the firm Johnson had authority to bind it by a renewal of its obligations. If he had taken up the old note and given a new one in the name of the firm, there would be no question of the liability of the firm thereon. It is equally bound by his renewal, made in the same form which had been adopted by the partners when the debt was originally created.
McFarland, J., and Van Fleet, J., concurred in the dissenting opinion.