34 Ky. 375 | Ky. Ct. App. | 1836
delivered the Opinion of the Court.
In the year 1832, James D. Breckinridge and James W. Denny, being partners in the practice of law in the city of Louisville, collected a sum of money for the firm of Kellogg and Baldwin, of New York; who being immediately apprised of the fact, drew a bill upon them for the net amount. In the latter part of December, 1832, the bill having come to the Branch of the United States» Bank at Louisville, for collection or payment, Denny ap. plied to a ‘shaver’s broker’ for the loan of three hundred and fifty dollars for eight or ten days; stating that a bill drawn upon Breckinridge and Denny, for money collected by them, had unexpectedly come to the Bank; and offering, as collateral security for the return of the money applied for, “some leases for ground rent, assigned in blank.” The sum desired was procured by the broker, from Shrieve, and delivered to Denny, who without executing any written evidence of the debt, received it, and took up the bill of Baldwin and Kellogg for three hundred and eighty dollars, seventy cents.
Before the last named bill fell due; Denny died; arid the bill being unpaid at maturity, Shrieve afterwards brought this action of assumpsit against Breckinridge. In the first count, suing ás the indorsee of Denny, he declares against Breckinridge as surviving acceptor* The sebond count is for so much money paid, laid out and expended, for the use of Breckinridge and Denny* The defendant demurred, and pleaded non-assumpsit; and fi verdict and judgment having passed, against him, and his motion for a new trial having been overruled, he has brought the case before this Court by appeal.
Several questions arise on this record; of which the first is, whether the acceptance of a bill of exchange, made in the usual form by writing the word “accepted’* across the bill, and signing the name of the acceptor under it, is not under the act of 1812, placing certain unsealed instruments on the footing of writings under seal, a specialty or covenant. If it is, the action of assumpsit could not be maintained in the present case, and this is one of the grounds urged for a reversal of the judgment.
This Court having determined in the case of Anderson v. Anderson, just decided, that the action of assumpsit may be maintained on an acceptance substantially the same as the present; this objection to the judgment cannot be sustained.
Other objections taken to the declaration need not be noticed, and we proceed to the questions made upon the trial, which will sufficiently appear from the following instructions given and refused:—
The Court, on motion of the plaintiff, instructed the jury, in substance, “that if the money furnished to Denny, was advanced for the purpose of paying the debt of Breckinridge and Denny, or upon the credit of that-firm, 'óf with the privity of Breckinridge, and if it was in fact applied to the payment of a debt of the firm‘d Breckinridge was liable for the amount with interest.” And the following instruction asked for by the defendant, was refused, viz: “That one of two partners-as attorneys and practitioners of law, has no right to pledge th¿ name of the other; and consequently, Denny could not, without the assent of Breckinridge, bind him for the repayment of the money borrowed'by Denny, nor render him liable by the acceptance of the bill drawn by Denny on the firm df Denny and Breckinridge.”
The instructions given seem properly to refer to the circumstances of the original loan, as furnishing thé test of Breckinridge’s liability; but they do not,in our opinion, lay down the proper criterion by which to determine it.
No man can be made a party to a contract by the act of another, unless the act be done under an authority, express or implied, or be subsequently approved or acquiesced in, under such circumstances as amount tó á ratification, or afford a presumption of previous authority or assent. Nor even in the case of an authority, express or implied, is the principal bound by the act of his agent, unless it be done for him and in his name, or unless it be necessarily apparent that it was intended and understood to be so done, and cannot otherwise have its pro* per effect.
These principles apply to the acts of partners, as well as others. But in the case of partners, there is an implied power founded on the fact of partnership itself, and on a regard for the convenience of the partners, the exigencies of their business, and the safety of those who have dealings’with them; by wdiich implied power, each partner is understood to be authorized to act for, and to bind the firm in all contracts coming within its line of’business, and which a bona fide dealer may have the right to consider as made on behalf of the firm, and for
In short, the borrowing of money is no part of the professional business of an attorney and counsellor, or of a firm associated for the pursuit of that business. It is not to be considered as coming within the scope of their ordinary transactions, unless made so by the terms of the association, or shown to be so by the practice or usage of the parties. Thei'e is, therefore, no pp.wer implied from the mere existence of an association in the practice’ of law, by which one partner is authorized to borrow money in the name of the firm, and to. bind the firm thereby; nor is there any ground in the same general fact, which would authorize the lender, dealing separately with one partner, to look to the name and credit of the others. When one member of such a firm separately borrows money, though for the avowmd purpose of replacing a, sum collected for a client, and for which the firm is liable, the transaction prima facie is his own, and imposes no responsibility upon the other partners to the lender, except so far as they directly or indirectly, participate in it. The necessary inference from such an application to borrow, is that the client’s money has been improperly used by the firm, or some of its members. And the inference is scarcely less strong that it had been so used by the individual who is attempting, without any co-operation of his partners, to replace it by borrowing. And that, although the firm be liable to the client, the individual partner negotiating the loan is the real debtor, and is providing the means of paying"” his
In these views, we have, as we think, sufficiently met the several points growing out of the instructions which have been stated; and as the opinions of the Circuit Court, in granting the instructions asked for by the plaintiff, and in refusing that which was moved on the part of the^ defendant, are obviously inconsistent with the principles which we have asserted, and must therefore be deemed to be errdneous—the judgment is, for this error, reversed, and the cause remanded for a new trial to be had on principles not inconsistent with this opii> ion. " ‘ ' " 1