153 Pa. 78 | Pa. | 1893
Opinion by
These eases depend on the same questions. The -difficulty thought to be encountered in them is much more apparent than real. There is a long line of cases among which is Schmertz v. Shreeve, 62 Pa. 457, holding that one partner cannot bind his partners or his firm by a deed or other instrument under seal by virtue of his implied power as a member of the firm to represent it. There is another line of cases which hold that a
Now the implied power of a partner to bind his firm rests on the doctrine of agency. The firm is an invisible artificial person, and necessarily represented by the natural persons who compose it. What they do therefore within the scope of the business in which the firm is engaged, and on its behalf or in its name, they do as its agents; and the agency grows out of and is implied from the relation between the invisible firm and the persons who have united to create it. A partner may buy and sell the goods in which the firm deals. He may borrow money for its use and give a note in the firm name therefor. He may indorse negotiable notes received by the firm in the
But the implied power of one partner does not extend to the persons or separate estates of his copartners, and for that reason such a judgment will be vacated on their application so far as they individually are concerned, or their individual estates real or personal: McNaughton’s Appeal, 101 Pa. 550. So much is necessary for their protection, but they have no equity as against the creditors of their firm which entitles them to be heard against the enforcement of such a judgment. On the contrary, the superior equity is in the creditors, whose right, in law as well as in morals, to have recourse to the firm property for the payment of their debts, is clear.
In the case before us the firm appears to consist of two members. One of these has confessed judgments in favor of certain firm creditors who have proceeded to seize the partnership property. The debts are not denied. There is no controversy over the amount of the judgments. No defence to a single dollar of them is suggested. But one partner asserts that the court should set aside these writs and vacate the judgments, because there was a seal appended to the warrant of attorney to confess judgment.
The court below was exactly within the rule in Schmertz v. Schreeve in holding that the dissenting partner had suffered no injury, and that neither he, nor the firm whose debt it was, had any equitable ground for relief, upon the petition or proofs before the learned judge who heard the motion.
For these reasons the appeal is dismissed and the order of the court below affirmed, so far as it relates to the firm of Thompson & Coxe. The judgment should be vacated as to Coxe as an individual, if he so desires.