This is a suit by the payees against the drawer and acceptors of a draft, dated April 1st, 1861, and payable seven months after date; on which the lower Court gave judgment against the defendants in solido; from which judgment Simonds, the drawer, appealed.
The appellant is discharged as drawer, for want of timely presentment and protest. It is a matter of history, that communication with Louisville, Kentucky, plaintiffs’ residence, was restored in the summer of 1862; and there is no proof of a demand or presentment before the institution of this suit in April, 1864. Action was not taken within reasonable time. Story on Bills, $ 365.
Plaintiffs aver and contend, however, that Simonds, the drawer, was really a partner in the firm of Colton & Baldwin, the acceptors; that the .sale, on 1st July, 1860, of his interest in the preexisting firm of J. S. Simonds & Co., to Baldwin, an employee, was a simulation and a fraud upon his creditors, and that, consequently, he is liable for the amount of the draft.
The evidence does not establish a simulation. There was, according to the proofs in the record, an actual sale and delivery. Simonds withdrew from the establishment, left it to the control of the new firm, and notified plaintiffs of the change, One witness, an employee, states that Simonds continued in the store the same as before the sale to Baldwin; but his testimony is outweighed by that of three others, who had equal opportunities for knowing- the true state of affairs. No motive is shown in Simonds for making a simulated or fraudulent sale in 1860, or for concealing his interest in the new firm. Fraud is not presumed; and it is incumbent on plaintiffs, whose claim originated after the sale thus attacked, to prove, with legal certainly, the allegations upon which they seek to make him responsible to them. We think they have failed to show that he was a member of the firm, with whom they say they contracted, and who are bound to them as acceptors. The preponderance of evidence is in favor of appellant. .
It-is therefore ordered, that the judgment of the District Court against the appellant, J. S. Simonds, be reversed, and that there be judgment in his favor, with costs in both Courts.