15 Colo. App. 461 | Colo. Ct. App. | 1900
However inequitable the result may appear to be, it is quite plain from the record Mrs. Barry was not entitled to judgment against both the firm of Lewin & Company and Roblyer, the tenant. It is quite possible that in an action properly conceived she may have been entitled to judgment against Lewin & Roblyer, but without other proof than that which she made up on the trial, she could not recover against the firm.
In 1891, John O’Brien was the owner of some premises in Littleton. In May he leased them for a term of three years to Roblyer, who occupied them as a saloon at an agreed rental of |40.00 per month. At some time either before or after possession was taken, and either before or after the lease was executed by the lessor and the lessee, and we do not undertake to determine which, the lease was underwritten with this clause : “ I hereby guaranty the payment of the above mentioned rent. Ph. Lewin Co. ” The time this guaranty was affixed and signed may be under some circumstances a very important consideration, and the evidence of the circumstances attending it may be of controlling force. We practically make no suggestion about it, leaving it for the jury to determine. Roblyer went into possession and remained there for a little upwards of a year, paying his rent, and then moved out. Shortly after Lewin or Lewin & Company removed the fixtures on which they held a mortgage and the premises were practically abandoned, though the key seems to have been with the widow of Mr. O’Brien who
A learned discussion respecting the law of partnership, the powers of partners and the law of agency which controls in such organizations, would be profitless. It is enough to announce the general rules which control these matters. It is and always has been the law that one partner can bind his co-partner only by those contracts which are within the scope of the business of the firm, or so closely related to it as to permit third parties to lawfully assume authority to execute them. It makes no difference that the contract was not within the purview of the business, provided there be specific antecedent authority, or there be proof to show that after the contract has been entered into the copartner has ratified and confirmed what has been done. All the books are clear on this subject and it is only by way of definition and the application of this law to particular states of facts that there has been any modification in the statement of the rule. We do not undertake to state it in its entirety, nor otherwise than with a general sort of accuracy which will not be misleading. It is equally clear that where a plaintiff brings a suit on a contract which is not within the scope of the business of the firm, the plaintiff is bound to offer evidence to show authority on the part of the signing partner or facts from which a ratification can be presumed. The burden is on the plaintiff which must be measurably sustained before she can be permitted to go to the jury. The evidence need not necessarily be dire'ct or positive, but there must be something from which the jury may lawfully have the right to assume the existence of the authority or a subsequent ratification. These matters may not be proven, however, as seems quite clear from the cases by the declarations of the signing partner, who under these circumstances may not bind his copartner by his statements.
Further than this it is quite clear the court erred with reference to the rejection of proof offered by the defendants to show that there was no new consideration passing between the parties when the guaranty was signed. If we were to pass upon the weight of the testimony, we should probably state that the great preponderance of it lay with the defendants with respect to the time at which the guaranty was executed. How it may be on the subsequent-trial we do not know, and therefore our opinion is rested entirely on what appears in the present record, and we go no farther than to suggest it. This is far enough, however, to show that it was a question of fact for the jury to determine when the guaranty was signed, whether before the tenant had gone into possession and the execution of the lease, or whether the guaranty was contemporaneous with the execution and the occupation by the tenant. Should the jury find from the testimony that the tenant had gone into possession, that the lease was executed and delivered before the guaranty was signed, it will be an important and pivotal question for them to determine whether any new consideration passed between the parties, for otherwise the firm would not be bound. The court would not permit the defendant to make proof on this subject. It is quite clear from the instructions the court attempted to correct this error because he gave instructions directly on this point. We do not believe however the instructions were enough to cure the difficulty, because there
The court likewise erred in refusing to give the third form of verdict to the jury, for if the jury found Lewin & Company were not bound on any basis of fact or question of law submitted to them, it was quite impossible for them to render a verdict for the plaintiff and against Roblyer, the tenant, and possibly on proper application dispose of the suit against the firm, leaving it to run only against Lewin and render a verdict against him because he had signed it. It is not at all clear and we are not called upon to decide whether an action will not lie directly against Robyler and Lewin to recover this money, for the reason that Lewin signed the firm name and led the landlord to believe it was a guaranty of the firm. There are cases which hold this doctrine.
During the trial there was evidence offered by the defendant to show that Lewin intended to mislead O’Brien or his wife by the signature, believing that he incurred no legal responsibility because of it. He offered evidence tending to show that he consulted with his brother who was a banker and perhaps a lawyer, who advised him that there was no liability attaching to the signature, because it was after the execution, delivery and occupancy, and there was no consideration. This evidence was objected to, or at least some part of it was, or some of the evidence tending in this direction, and the court remarked to the jury that it was not possible for a defendant to sign a contract of this kind and then attempt to escape liability. This matter is shown by the affidavit of Mr. Levy on the motion for a new trial and is the subject of complaint on this appeal. We do not intend to determine whether this constitutes reversible error be-
For these errors which appear on the record and which we have demonstrated, the judgment entered on the verdict must be reversed and the case sent back for a new trial not inconsistent with this opinion.
Reversed.