Burwell v. . Linthicum

Feb 5, 1888
Versions:100 N.C. 145
5 S.E. 735
Smith, C. J.,

(after stating the facts). The rulings of this Court are decisive of the character of the instrument and the nature of the obligation which it imposes. While bearing the seals of the parties, it is a covenant as to the intestate, H. H. Burwell, and a simple unsealed contract as to the other party. This rule is settled by several adjudications in this Court.

*148 In Brown v. Bostian, 6 Jones, 1, which was an agreement to deliver to the plaintiff firm of Brown, Brawley & Co. one hundred barrels of good, merchantable flour, and after the wordsj “ witness our hands and seals,” it bore the signatures, thus: BROWN, BRAWLEY & CO., [Seal.]

DAVID BOSTIAN, [Seal.]

In the body of the instrument are found the words: “said Brown, for Brown, Brawley & Co., contracts and agrees,” &c., and Battle, J., in the opinion, says: “ It is true, that, in the body of the instrument, the contract purports to be made between John L. Brown, for the plaintiffs and the defendant ; and John L. Brown, for the plaintiffs, promises to pay the defendant for the flour upon its delivery. Brown, as a member of the firm, had full authority to make the contract, but not to bind the partnership by a seal. Had the defendant performed his part of the contract by the delivery of the flour, he might have found a difficulty in suing any person upon this written agreement. He could not have maintained an action upon it against Brown alone, because it was not signed in his name; nor could he have sued the partnership upon it, because Brown was not authorized to put their seal to it. The defendant would not, however, have been without an adequate remedy, as he could have brought an action against them for goods sold and delivered, and used the written instrument as evidence of the price and terms of payment.” For this, he cites Delius v. Cawthorn, 2 Dev., 90; Osborne v. The High Schools Mining and Manufacturing Co., 5 Jones, 177.

In Fronebarger v. Henry, 6 Jones 548, Ruffin, J., declares the rule of the common law to be, “that one partner cannot bind another by deed, by virtue of his authority as partner merely, and that an instrument like this,” (before the Court,) “ is the deed of the executing party alone.” And he questions the admissibility of the instrument *149 as “ plenary evidence of a debt of the firm, on any consideration.”

In Fisher v. Pender, 7 Jones, 483, the apparent discrepancy in the two cases, is explained and removed, in a full and learned discussion of the doctrine, and the conclusion reached is announced by Battle, J., in these terms: “ It is apparent from the case,” (Elliot v. Davis, 2 Bos. & Pull. Rep., 338,) “ that one partner may bind himself by deed, by signing it in the name of the partnership, provided he seal and deliver it as his own deed as well as that of the partnership, and he will be bound by the instrument, though the other partner or partners will not, unless he had their authority, under seal, to execute for them. That is the true rule, and it is in accordance with the well established principles which govern the execution of deeds.”

The same principle is recognized in Osborne v. High Schools M. & Man. Co., supra, and Taylor v. School Com., 5 Jones, 98; Holland v. Clark, 67 N. C., 104.

The agreement shows, clearly, that the partnership and not an individual member was intended to be bound, and it was, at most, if effectual at all, a parol contract of the firm, and subject to the three years’ statutory bar, while the obligation of the plaintiff’s intestate, incurred by covenant, is governed by a different period of limitation, and there is no inconsistency in this, as decided in Davis v. Golston, 8 Jones, 28.

The appellant seems to have claimed the benefit of sub-sec. 9, § 155, of The Code, which provides for relief against fraud in cases theretofore “solely cognizable in a Court of Equity,” in which the cause of action accrues from the time of its being discovered. The present action, under the former system, would have been at law and not in equity, and does not belong to the class mentioned in the statute. Blount v. Parker, 78 N. C., 128, and cases at the foot of the section. There is no error, and the judgment'is affirmed.

No error. Affirmed.