38 Barb. 656 | N.Y. Sup. Ct. | 1863
This action is brought to recover damages for a breach of a contract of warranty, made
The power of one copartner to transact the whole business of the firm, whatever that may be, and consequently to bind his copartner to the same extent as himself, results from the contract of copartnership; for without such authority the business of the'firm could not be effectively and successfully prosecuted. If that business is to buy and sell goods and property, and as goods and property are usually bought and sold on credit, any person who deals with the individual partner has a right to consider his acts as those of the company, whoever may compose it. If he buys on credit, the presumption is that the credit is given to the firm, and the firm are consequently liable to pay the debt thus contracted. A warranty of the title, on a sale of personal property, is implied as an incident of the sale, and so the power of one copartner to make an express warranty as to the quality or the quantity of the goods sold would be implied, as necessary and indispensable to the effectual exercise of his general power to act for and bind the firm. The power of one copartner to bind the firm of which he is a member, in all that relates to its legitimate business, is but another expression of the law of agency. The individual copartner is the agent for the firm, and acts for it within the scope of his authority, which is to be ascertained by reference to its particular business and the powers necessary to an effectual prosecution thereof. The ¿ase of Van Keuren v. Parmelee, (2 Comst. 524,) which overturned a rule long prevalent in this country and inherited from the English courts, rests upon the recognition of this law of agency in its application to copartners. It denied and repudiated the power of one copartner to rescue a claim from the operation of the statute of limitations by a promise made after the dissolution of the firm. Judge Bronson, in the opinion of the court, after a statement
The judgment should be affirmed.
Brown, Scrugham and Lott, Justices.]