It appearing by the evidence given by the plaintiff that the notes were made by David Hunt as principal and signed by Alfred H. Hunt with the firm name of Stocking Hunt as sureties for David Hunt, in order to show a right of recovery against Stocking, it was necessary for the plaintiff to give evidence to show that Stocking authorized the signature of the firm to be made, or that he subsequently ratified the act. (Dobb v.Halsey, 16 Johns. 38; Foot v. Sabine, 19 Johns. 154.)
It was competent to establish that fact as well by the proof of circumstances from which it might properly be inferred as by direct proof, and for that purpose the testimony of Eames and Rathbone was pertinent.
It was not denied either at the trial or on the argument in this court, but that this evidence was competent and proper to be given by the plaintiff upon the question whether Stocking authorized or assented to such use of the copartnership name of Stocking Hunt, by his partner Alfred H. Hunt.
It can not be denied, but that the evidence thus given, tended to prove the liability of Stocking. It authorized the presumption of his assent to the use of the copartnership name of Stocking Hunt, upon the notes in question as security for David by Alfred H. Hunt. It seems that *Page 412 the counsel for Stocking on the trial considered, that there wassome evidence of his assent, for on the motion for a nonsuit, the ground taken was not that there was no evidence of his liability, but that there was not sufficient evidence of it. I think that the judge was right in refusing to pass upon the weight of the evidence; if there was any evidence of the disputed fact it was the province of the jury to determine its effect. The general rule is, that if there be any evidence tending to the proof of the fact in question, its sufficiency and effect belong exclusively to the jury to determine under such observations upon it as the court may think proper in its discretion to make to aid them in their deliberations. (Columbian Ins. Co. v. Lawrence, 2 Peters, 25, 44; Bank of U.S. v. Corcoran, ib. 121, 133;Van Ness v. Pacard, ib. 137, 149; Greenleaf Ev. § 2; Weed v. Carpenter, 10 Wendell, 404.) I think the judgment should be affirmed.
TAGGART, J., was in favor of reversing the judgment and ordering a new trial.
All the other judges concurred in the opinion of judges Willard and Jewett.
Judgment affirmed. *Page 413