19 Barb. 326 | N.Y. Sup. Ct. | 1855
By the Court,
The note in question was given by De Witt for a separate pre-existing debt of his own, with which it does not appear the defendants Dudley and Bass had any connection. The note was made by De Witt to the order of De Witt, Dudley & Co., a copartnership firm consisting of the defendants Dudley and Bass and the said De Witt, and at the same time De Witt indorsed the note with the name of the said firm. There is no legal evidence tending to show that at the time such indorsement was made by De Witt, he was authorized by his partners or either of them to do so, or that they .knew of it at the time it was done. On the contrary, it appears that they were not present at the transaction. The evidence that when Kelly, the plaintiff’s clerk and agent, inquired if De Witt would have the right to indorse the firm name, De Witt replied that such was the understanding between him and his partners, was clearly inadmissible, and must now be excluded from consideration. It is impossible for one partner, by his acts or admissions, to bind his copartners without their assent, express or implied, for an individual debt of his own. The plaintiff does not occupy the position of a bona fide indorsee, because the ease shows that the note was taken by his clerk and agent
The case, thus far stated, entirely fails of showing any liability on the part of the defendants Dudley and Bass to the plaintiff, on the note. There are other facts, however, upon which the plaintiff claims that these defendants subsequently ratified the use of the firm name as indorsed upon the note.
The only facts in the case in addition to those above stated, of any importance, are that at the time of giving the note, the said firm of De Witt, Dudley & Co. were engaged in the business of casting stoves and iron ware and vending hardware and stoves, at a stove warehouse kept by them in the city of Buffalo. That the note in question was made and executed at the place of business of the defendant in Buffalo and delivered to James H. Kelly, the clerk and agent of the plaintiff, for the plaintiff. That neither Dudley nor Bass were present, but the book-keeper of De Witt, Dudley & Co. was present. That the note was immediately entered in the bill-book of the said copartnership and charged on the books of the copartnership to De Witt individually by the book-keeper; at the same time Kelly took De Witt’s due-bill to the plaintiff for $388, payable in castings at the furnace of the defendants for a previous debt, being the balance of the same debt for which the note in question was given. That the defendant Bass returned to Buffalo in the same week, and the defendant Dudley, in five or six weeks thereafter, and when they returned they attended personally at the store where the note was made and the books of the copartnership were kept in which said note was entered and charged as aforesaid. The partnership was dissolved November 13th, 1851.
In all this there is certainly no positive evidence of assent on the part of Dudley and Bass, and, we think, nothing from which a jury would have been justified in implying one. The transaction is isolated, entirely unconnected with any other of a similar character. There is no evidence of any usage or course of dealing of the firm of De Witt, Dudley & Co. upon which such an implication could be founded. Assuming that a jury would be justified in the inference that when Dudley and Bass
The theory upon which one partner may bind his copartners by the use of the partnership name upon commercial paper, or other paroi contracts, is that a confidence is reposed which amounts to a power or authority to each partner to bind the firm by contracts in matters relating to the business of the partnership. But this power is circumscribed and limited to contracts within the scope of the partnership business. The power does not exist beyond such transactions, although, for reasons of public policy, in the case of commercial paper in the hands of bona fide holders, the partners will all be held liable, where the partnership name has been used,- without -reference to the question whether the paper was made in the course of the partnership business, or on account of an individual member or otherwise.
Where one member of the partnership uses the name of the firm, he assumes to exercise power for his copartners. If he acts without such power at the time, it is nevertheless competent for the other members of the firm afterwards to ratify what had been done in their name without authority, and thus bind the firm, on the same principle that a principal may always confirm an unauthorized act of his agent. But simply giving evidence to raise the presumption of knowledge that the act had been done in his name although without his authority, can never amount to proof of a ratification. And that was all that' was done in this case. The ratification of an unauthorized act is the thing, and the only thing which creates the obligation; and to
Johnson, Wells and T. R. Strong, Justices.]
We think, for these reasons, there should be judgment for the defendants.
Ordered accordingly.