Lowery v. Drew

18 Tex. 786 | Tex. | 1857

Wheeler, J.

Although the general rule is, that one partner cannot bind the firm by executing a deed, yet it is well settled that any express ratification, though parol, by a partner, of a contract under seal, entered into for the firm by his co-partner, makes the instrument the deed of the firm. (Parsons on Con. 94 n.) There are decisions to the effect that a partner may bind his co-partner by a contract under seal, made in the name and for the use of the firm, in the course of the partnership business, provided the partner assents to the contract previously to its execution, or afterwards ratifies it; and this assent or adoption may be by parol. This is the settled doctrine in Massachusetts, and I apprehend in other States. (Id. Chit. on Con. 230 and notes.) We think the reasonableness of so holding, and the authority of the Courts which have so decided, sufficiently commend it to our adoption.

The letter of Drew contains an express assent to any contract entered into between the defendant Lowery and the plaintiff's partner, Thompson. It is said this letter had reference to the giving of the bond for title by Lowery. But we think the expressive “ any” contract, shows that a reference was not made to a particular contract, but to any contract they might have made, or might see proper to make, respecting the matter of the fee. Drew entrusted that whole subject to the management of his partner. By his letter he certainly lead the defendant to believe, that whatever his partner did would be approved of by him ; and we think he ought to be held to have approved, and be bound by it.

Apart from any authority contained in the letter, Thompson as partner, had full power and authority to settle and adjust the matter of their fee. He did so, fixing it at two hundred dollars to be paid in money. To this, the client objected, and Thompson finally, as a compromise, agreed to accept the contract to convey an interest in land. But although he did assent to this asan alternative which he would accept, if he could not get the money, he still preferred the latter, and kept the subject open for negotiation, by still insisting on the client taking back the bond and paying the money. In the meantime the plaintiff was silent. It does not appear that he ever assented to the taking of the bond, or that he even knew that it had been taken, or what contract his partner had made, until after the bond had been delivered back, and the matter finally settled to the satisfaction of his partner by the payment of the money. And then he suffered nearly two years to elapse before- he was heard to complain. Under the circumstances, we do not think he was entitled to be heard to complain, or question the authority of his partner as to what he had done in the premises. We think Thompson had the right and authority to settle the matter of the fee as he saw proper, at least, that the defendant had the right so to regard it; and that the negotiation in respect to the fee was kept open by Thompson expressly, and by the tacit consent of the plaintiff, until it was finally closed by the delivery back of the bond, and the receipt of the money, fixed upon and demanded as the fee to which the plaintiff and his partner were entitled; and that Thompson had the same right to return the bond to the defendant, that he had to receive it in the first instance ; that the plaintiff, under the circumstances, had no more right to complain, or question his authority in the one case than he would have had in the other.

We are of opinion therefore that the judgment is erroneous, and that it be reversed, and the cause remanded.

Reversed and remanded.