12 Wend. 53 | N.Y. Sup. Ct. | 1834
By the Court,
The burthen lay upon the defendant to show that he had authority to sign and seal the instrument in question for his co-partners; and the proof should be conclusive on the point, to justify the court in turning the plaintiffs over to a new action. Without now touching the somewhat litigated question whether an authority to seal for another resting in parol, is valid and competent for that purpose, it is sufficient to say, that no authority to seal, of any description, has been shown in this case, before the execution of the contract, nor has there been any subsequent ratification of it by the co-partners.
There was evidence of an existing authority to make the contract for the transportation of the flour, and even without any express' power, the defendant was authorized to make such a contract by virtue of the partnership, as it fell within the scope of it; but this gave him no authority to seal. Authority to seal is not to be implied from an express power to make a contract not requiring a seal; nor is it to be derived from the existence of the partnership. One partner, by virtue of it, has no power to seal for another. 7 T. R. 207. 9 Johns. Rep. 285. 1 Wendell, 326. 9 id. 68. The implied power to one partner to act within the limits of the partnership is as complete as an express power to act in a specified case ; and if the general power does not confer authority to seal, the other cannot. If the above conclusion is correct, the suit is properly brought against the defendant, and he is personally responsible to the plaintiffs, upon the covenant. 3 Johns. Cas. 180. 13 Johns. R. 310. 2 Caines, 254.
There were nineteen issues before the justice, as appears from the record in this case. Many of them issues of law, in the form of issues of fact upon which questions have been raised ; but the pleadings are so imperfect and irregular that I shall not examine them. If a party is desirous to plead specially in a suit before a justice, it should be done with more formality and precision than was pursued here, if he expects the common pleas or this court to examine and determine the
The court were right in permitting the instrument to be read in evidence, notwithstanding the objection growing out of the condition of the seal. The question raised belonged to the jury.
After a critical examination of the facts, and direction of the court below, I am of opinion the judgment should be affirmed.
Judgment affirmed.