By the Court,
DixON, G. J.Tbe questions in tbis case arise upon an exception to tbe decision of tbe county court refusing to receive any evidence on tbe part of tbe defendant, on tbe ground tbat tbe answer does not state facts sufficient to constitute a defense to tbe action. Tbe plaintiff objected for tbat reason, and tbe court sustained tbe objection. It is therefore as if tbe case stood upon a demurrer to tbe answer. We think with tbe county judge tbat tbe answer is insufficient. Tbe position assumed by tbe defendant’s counsel is tbat tbe copartnership between Lee and Cain being dissolved, Lee bad no authority to bind Cain by giving tbe notes in suit in tbe name of tbe firm; tbat tbe defendant was induced to indorse tbe notes by tbe representation of tbe plaintiff tbat Cain bad assented to become liable on them as maker, which was untrue; and tbat be was thereby injured, because instead of having tbe liability of both Lee and and Cain, as be supposed, be has tbat of Lee alone so far as these notes are concerned. "Conceding tbat tbe propositions of law involved in this argument are correct, still it must fail for want of an averment-of the most material fact upon which it is predicated; It is not alleged in tbe answer tbat the plaintiff represented 'to tbe defendant that Cain bad assented to become liable on tbe notes as made by Lee, or tbat be bad authorized Lee to execute them in tbe name of tbe firm. Tbe answer contains no direct or positive averment of tbe kind. It merely avers tbat at tbe time of tbe execution of tbe notes tbe plaintiff informed tbe defendant that be bad arranged with Lee and Cain to extend tbe time for payment as specified in them, provided tbe defendant would indorse them. This is entirely consistent with tbe supposition tbat Cain intended to sign tbe notes himself, and tends not at all to tbe conclusion tbat be authorized or assented to tbeir execution by Lee in the name of tbe firm. Tbe arrangement could be made without au-*392tllority ^y e^er Pai’tner to tbe other to use tbe name of tbe in carrying it out; and being made, tbe inference would kg that -they contemplated tbat it would be completed in a lawful manner, that is, by each partner putting bis own signature to tbe notes. Hence tbe representation tbat Cain bad assented to tbe arrangement is by no means a representation tbat be bad assented tbat Lee should execute tbe notes in tbe former partnership name.
It is alleged tbat the plaintiff and defendant went together to tbe office formerly occupied by the firm, where they found Lee alone; tbat tbe plaintiff produced tbe notes and Lee signed them in tbe name of tbe firm, and thereupon the defendant indorsed them, “ believing and supposing from tbe representations of said DicJcerman, tbat be bad procured tbe consent of said Cain thereto, and had procured said Cain to authorize said Lee to execute the same in their joint names.” This is tbe only intimation contained in tbe answer tbat the plaintiff made any such representations as those relied upon in the argument. It is obviously not an averment of a material fact in any legal or proper form, but purports merely to be a statement of the defendant’s belief at the time he indorsed the notes, unsupported by any fact upon which such belief could reasonably be founded. It appears that the defendant was already liable for the debt; that he was familiar with the affairs of the late firm of Lee & Cain, and knew that they had dissolved; that he was present when the notes were executed, and knew that they were signed by Lee alone. From these and all other circumstances attending the transaction, the presumption must be that he acted upon his own judgment in the premises, and not upon statements made by the plaintiff.
It is true that he subsequently says “that he is informed by said Cain and verily believes it to be true, and he therefore avers, that said Cain never assented to any such arrangement, or authorized said Lee to execute said notes in their joint names, and therefore that the representations of said plaintiff in tbat particular were untrue, and that he was deceived thereby.” It might, perhaps, be urged that this, with the previous allegation, constitute a good averment that he *393♦was misled by the representation that Cain had assented to the arrangement, when in truth he had not. But the previous gation is too general and uncertain to support a charge fraud. To sustain it the facts constituting the fraud should be clearly and specifically stated, and nothing should be left open to inference or doubt; and most especially should they not be consistent with a supposition of innocence on the part of the accused.
The falsehood, if any, must have consisted in the plaintiff’s representing that Lee and Cain, each for himself, had assented to the arrangement, when he knew that they had dissolved and consequently that such individual assent was necessary to bind both. The fact of dissolution must have been before his mind, and the representations made with reference to it. Of these facts necessary to a fraudulent affirmation, neither the plaintiff’s knowledge of the dissolu tion, nor a statement by him that Lee and Cain had individually consented, are averred. It appears that he knew that they had been partners, and that he had dealt with them as such; but there is nothing in the answer to show that he knew they had dissolved. The representation, therefore, is entirely consistent with his innocence. ■ Believing that the partnership still continued — for the contrary cannot be assumed — he applied to Lee, who assented to the arrangement. Under such circumstances that was sufficient to authorize him to say that Lee and Cain had assented, and the statement was neither false nor fraudulent.
For these reasons the circuit court was-right in rejecting the evidence, and the judgment must be affirmed.
Ordered accordingly.