11 Haw. 772 | Haw. | 1899
OPINION OF THE COURT BY
This is an action for $64 and interest upon a promissory note for $Y0 (upon which $6 had bien paid) given to the plaintiff by one of the defendants in the name of the pártnership composed of both defendants. The defense was that one partner had no authority to give a note in the name of the firm. The District Magistrate found for the plaintiff and the case now comes here on defendant’s appeal on points of law.
The general rule is that each partner is an agent of the partnership with implied authority to act for the firm in all matters within the scope of its business. In trading or commercial partnerships there is in general a presumption of law that each partner may give notes .in the name of the firm, for the reason that the giving of such notes is within the usual course of mercantile transactions. In non-trading partnerships the presumption is generally the other way and in order to hold such a firm upon a note given in its name by one partner it must be shown as a question of fact that such authority existed or that the act
In the present case one partner knew nothing of the note made by the other until just before suit. There was no ratification. It is claimed that part of the money borrowed was not applied to partnership purposes, but this would make no difference if there existed authority to make the note. There was no express authority. On the contrary, the articles of co-partnership provided that neither partner should make any note without the consent of the other. These articles were not recorded and while the plaintiff can find nothing therein to sustain him yet he is not bound by anything therein of which he had no knowledge. The partners were conducting business as rice planters. This clearly belongs to the class of non-trading businesses. The presumption is that neither partner had authority to give a note on behalf of the firm. There is no evidence to show that the giving of notes by one partner in the partnership name is usual in the business of rice planting or had become a practice of this particular firm, or was necessary to the successful conduct of its business, and the court cannot say of its judicial knowledge that there is a general usage of this kind
The judgment appealed from is reversed and the case remitted to the district court for a new trial.