Benjamin Simons, Ezekiel Simons and Max Thurmaner, who describe themselves as partners under the name of B. Sf M. Simons Sf Co., sued Rees and Me Cole upon a promissory note payable to the order of B. Sf M. Simons Sf Co. The note is as follows:
“ $945 00. Cincinnati, Ohio, May 11,1854. Six months after date we, the subscribers, of Noblesville, county of Hamilton, and state of Indiana, promise to pay to the order of jB. Sf M. Simons Sf Co. 945 dollars for value received, without any relief from valuation or appraisement laws. [Signed] J. H. Rees, S. R. Me Cole.”
The defendants answered the complaint by a general denial. Issue being thus made, the cause was submitted to the Court. The note sued on was the only evidence adduced on the trial; and upon that evidence alone, the Court found for the plaintiffs. New trial refused, and judgment.
This judgment is said to be erroneous because there was no evidence tending to prove that the plaintiffs constituted the firm of B. Sf M. Simons Sf Co. There is nothing in the objection; such proof is only required when the title of the plaintiffs as payees of the note is put in issue by some form of pleading verified by affidavit. Abernathy v. Reeves, 7 Ind. R. 306, decides the question under consideration.
Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.