89 Pa. 453 | Pa. | 1879
delivered the opinion of the court, May 5th 1879.
This was an action on a parol award of arbitrators. The submission was by parol, but whether made by one or both the copartners was a question in controversy.
The general rule in England and in many of our sister states, is that one partner cannot bind his copartner by submission to arbitration. In Pennsylvania it is held that he may so bind his copartner, by agreement not under seal, in any partnership matter. The question was carefully considered in Taylor et al. v. Coryell et al., 12 S. & R. 243. In that case the evidence did not show either consent or dissent on the part of the copartner. The able opinion of Mr. Justice Duncan well states many of the practical inconveniences that would result from a denial of that power. It cannot bo done by instrument under seal because the authority to execute a deed must be by deed, That, however, applies to the manner of binding a copartner, and not to the question of implied agency. When the submission is confined to cases for settling and determining claims arising in the partnership business, it is difficult to assign any substantial reason for denying the power of one partner in good faith, to bind his copartner, by a parol submission. The same doctrine is held in Southard v. Steele, 3 Monroe R. 433. The incidental dictum of Mr. Chief Justice Gibson in Harper v. Fox, 7 W. & S. 143, in no wise impairs the authority of Taylor v. Coryell.
The subject-matter of submission from which the present action arises, was to determine the sum justly due from the plaintiffs in error, fo the defendant for their use of a saw-mill, in which he owned the undivided half. If they had used the mill in manufacturing their lumber, it was clearly within the scope of the partnership business for one partner to ascertain the sum due and pay the same. Failing to agree with the owner of the mill, one partner had the right to submit the question by parol to arbitrators to decide, and the firm was bound by the award made in pursuance of the submission. A parol award made on a parol submission is a valid award: McManus v. McCulloch, 6 Watts 357.
The remaining question relates to the proof of partnership. The rule of court declares that in actions by or against partners, it is not necessary on the trial to- prove -the partnership; but it shall be taken to be admitted as alleged on the record, unless one or more of the defendants shall make and file an affidavit denying the existence of the partnership as alleged. In this case Calvin Gay filed an affidavit denying that he was a partner, and also pleaded that he was not a partner in the case with James Gay. After the jury was sworn and the- plaintiff below was proceeding to give evidence to establish the partnership, the counsel for the defendant below asked leave to withdraw the plea of no partnership, which the court permitted to be doné; but at the same time stated in the hearing of their counsel that this must be regarded as an admission of the partnership as fully as .if no affidavit had been
We discover no error in the record.
Judgment affirmed.