Cunningham v. Lamar

51 Ga. 574 | Ga. | 1874

Trippe, Judge.

There can be no doubt that one partner cannot, of his own authority, bind the partnership by signing the firm name to a bond which is necessary in suing out a legal process for himself in some individual suit of his own, nor indeed in actions in favor'of any persons except the firm. Where it is in behalf of the firm, special power so to sign is given by the Code. And without the proof offered in this case, the garnishment bond would have been a nullity in so far as it wanted security. It is claimed by defendant in error that although Claghorn, the other party, authorized and consented for his co-partner to sign the firm name, yet, as the instrument executed was under seal, the authority must also have been under seal. It cannot be denied that this was, as a general rale, the doc-' trine of the common law. But there are limitations and exceptions to it which largely modify its operation. There is another rule of the common law, as ancient as the other, which makes a deed executed by an agent in the presence of his principal the deed of the latter, although the authority. to do it is merely, by parol: Story on Agency, section 51; Gow on Partnership, 59. So, also, has it often been held, that if the deed be executed by one partner in the presence of and with the assent of all the partners, it shall be deemed the deed of all: Story on Partnership, sebiion 120, and a large number of cases there cited sustaining the position. In Ellis vs. Francis, 9 Georgia, 325, it was held that a return of nulla bona on an execution made by a person other than the constable, but in his presence and by his request, he knowing it to he true, might “ be considered as the act of the constable himself, as much so as if he had held the pen in his own hand:” See also Reinhart vs. Miller, 22 Georgia, 415. Whilst we are then strongly inclined to the opinion that Mr. Claghorn whs bound by the bond as'it was executed, either individually or with the partnership of which he was a member, we are satisfied that it would-have been proper to have allowed the amendment, and that it was error to dismiss the garnishment.

Judgment reversed.