By the Court,
Bronson, J.It was enough for the plaintiffs to prove, in the first instance, that the defendants were partners, and that the endorsement of the notes was in the hand-writing of Williams, one of the firm. But when it appeared that the notes were not endorsed in the course of the partnership business, but for the benefit of Denison, and that this fact was known to the plaintiffs, it was then incumbent on them to show that Johnson as well as Williams had assented to this undertaking. Penoyer, the plaintiffs’ agent who made the sale, knew that the endorsements were not, made on account of any partnership transaction of Williams & Co., but for the *157debt or benefit of Denison; that the endorsers were not principals, but mere sureties for Denison who purchased the hemp. The clerk of Penoyer, who carried the notes and procured the endorsements, must have known that it was r , . the act of Williams alone. But it was unnecessary to bring home notice the plaintiffs that Johnson was not bound. It was their business to show affirmatively that he was a party to the contract. The notice which defeats the plaintiffs, is, notice that the endorsements were not made on account of a partnership transaction, but as sureties for Denison. It would be useless to go into a review of the cases. There has been a uniform course of decisions on the question in this state for more than thirty years; and nothing could be more mischievous than to unsettle a well established rule in relation to mercantile and commercial transactions. 2 Caines, 246. 2 Johns. R. 300. 4 id. 251. 16 id. 34. 19 id. 154. 1 Wendell, 529. 3 id. 415. 6 id. 615. 7 id. 158, 309. 11 id. 75.
The plaintiffs insist that they parted with their goods in the usual course of trade and on the credit of these endorsements ; but that fact will not help them. Bank of Rochester v. Bowen and others, 7 Wendell, 158. There the plaintiffs had parted with their money on the credit of a partnership name subscribed by one of the partners; but it appeared that the note was discounted by the bank for the benefit of a third person; and this fact being known to the cashier at the time, it was held that the plaintiffs could not recover without proving the assent of all the partners to the undertaking. It is impossible also to distinguish the case now under consideration from that of Joyce against the same defendants. Joyce sold goods to one Flagg, and in payment took his draft on the defendants, accepted by the firm in the hand-writing of Williams. The case expressly stated that the goods were parted with on the faith of the acceptance ; but it was held that Johnson was not liable, and a verdict which had been rendered for the plaintiff was set aside. Joyce, or what was the same thing, his clerk, knew that the draft was accepted by the firm as sureties for Flagg; and it then became necessary for him to prove that both of the partners had agreed to the undertaking.
*158It is said that it should have been submitted to the jury to say whether there was any fraud in the transaction. It is not a question of fraud, but of contract. Has Johnson ever agreed to pay these notes ? Williams had no authority to bind him; and if Johnson has not himself assented to the obligation, there is an end of the question. Good faith on the part of the plaintiffs cannot subject a third person, who has never dealt with them, to any liability ; and if they parted with their goods in the honest belief that Johnson as well as Williams was answerable as an endorser of the notes, that only proves that they mistook the law of the land. Their error in judgment was a misfortune, xvhich they cannot throw off upon one who stands on his- legal rights.
I think the evidence given by the plaintiffs, and that which was offered and rejected, was not sufficient to w'arrant the presumption that Johnson had assented to this undertaking. It is not pretended that there w>as any direct evidence to charge him ; and the facts and circumstances on which the plaintiffs rely, are too remote and unsatisfactory in their character to authorize the inference of an agreement on his part. Full- effect must be given to the rule, that in transactions of this kind one partner cannot bind the other without his consent. It would be better that the rule should be abolished, than to allow its practical nullification by presuming assent upon the proof of slight and inconclusive circumstances. Although the plaintiffs gave some evidence tending to make out a case against Johnson, it was not sufficient to warrant a verdict in their favor, and a nonsuit was properly ordered. Demyer v. Souzer, 6 Wendell, 436.
New trial denied.-