6 Ala. 92 | Ala. | 1844
The evidence set out in the bill of exceptions, shows that the acceptance of the firm, was given by one of the partners as a security for a debt of a third person; and the question is, whether the jury was authorized to infer an au
It is well settled, both in England and in this country, that a partnership connexion does not, necessarily, invest one partner with the power to give a valid security in the name of the firm, either for his own private debt or for that of another. [Gow on Parto, ch. 2, § 2; Story on Part. 191.] The only difference in the application of the rule is, that, in England, it rests with the partners to show they did not consent; while here, the onus is cast on the plaintiff. [Story on Part. 192; Dob v. Halsey, 16 John. Rep. 34.] We say it rests with the plaintiff to show the consent of the other partners, but this must be understood with the restriction, that he is the party to whom the security is given; because it is held by several decisions, that a bona fide holder will be affected by the want of authority of the partner when the firm name appears. [Arden v. Sharp, 2 Esp. 524; Swan v. Steele, 7 East, 210; Chitty on Bills, 46; Ridley v. Taylor, 13 ib. 175.]
[&,, In the case before us, it is stated, all the facts were known to the plaintiffs, and, therefore, the onus is thrown on them of showing the consent of the other partners, who deny the authority of Child. It is not necessary there should have been an express assent: it maybe implied from circumstances; but there were none such before the jury, unless the consent is to be inferred from the business followed by the firm. We can perceive nothing in the calling of commission merchants which makes them an exception to the general law. Doubtless, they frequently accept bills without being in funds, and on the mere expectation of business to be confided-to them; but, if such was the ordinary business of this firm, nothing was more easy than to show it' in evidence. It is not, however, our province to determine, in advance, upon what circumstances want of authority maybe inferred: it is sufficient to declare that none such existed in this'case when before the jury.
The result is, that we consider the charge given by the circuit court as erroneous.
Judgment reversed, and remanded.
