202 F. 48 | 4th Cir. | 1912
In this case the parties thought it desirable to have their contract under seal. There were obvious reasons why it was desirable, if not necessary, that the instrument should be sealed. One partner has no authority to execute a sealed instrument on behalf of his copartners unless authority to do so is given him under their seals. Waldron v. Hughes, 44 W. Va. 129, 29 S. E. 505; Alexander v. Alexander, 85 Va. 365, 7. S. E. 335, 1 L. R. A. 125. There may be various ways of executing a sealed instrument on behalf of a firm. One of the best text-books on contracts"speaking of this subject says:
“Wbatever be the strict law as to the various possible methods of executing a specialty by a partnership, practically the individual names of the partners should be given in the body of the instrument, with the recitation that they are partners composing a firm also napied; and each partner should with his own *hand subscribe his name opposite his several seal. This will certainly be right, the proof be easy, and no unpleasant questions of law or fact can follow.” Bishop on Contracts, § 1150.
This was precisely what was done in the case at bar. The three members who composed the firm of the Collins Company in the body of the instrument gave their names', said they were partners doing business under the firm name of The Collins Company, and described the Collins Company as the party of the second part. They each then signed the instrument and affixed their individual seals. Even in executing a simple contract on behalf of a firm, a partner may, if he sees fit, instead of following the usual practice of signing the firm name, write the names of the individual partners. Bishop on Contracts, § 1149, and cases there cited.
Of course, whenever the individual members sign their individual names, and not the firm name, there must be something eithe'r in the agreement itself or in the nature of the transaction to which it relates which shows it to be a partnership undertaking. The parties may in the contract itself describe it as a partnership undertaking. In this case they have said so. The contract starts out by declaring that it is made by them as partners. It could not be questioned that, if after their signatures and seals they had added the words “partners doing business under the firm name of The Collins Company,” it would
In this case it is unnecessary to inquire to what extent and under what limitations parol evidence is admissible to show that a contract, apparently that of individuals, was, in fact, a partnership undertaking or vice versa. In this case the same conclusion must be reached, whether we confine our attention to the words of the contract or take into account the testimony already summarized.
It follows that the decree below, by which the referee was directed to allow the claim of the appellee against the individual estate of Creed Collins, must be reversed. The claim has already been allowed against the firm estate. The propriety of this latter allowance is not questioned. If there shall be any surplus of the individual estate of Creed Collins remaining after the payment of his individual debts, this claim, like all others allowed against the partnership of which he is a member, will participate in its distribution.
Petition to review in No. 1,071 dismissed. Decree in No. 1,083 reversed.