1 Wend. 326 | N.Y. Sup. Ct. | 1828
By the Court,
The questions presented by the bill of exceptions in this case, are, 1. Whether, under the circumstances, the submission and award were competent evidence 1 and 2. If competent, whether the award is valid %
In the case of Ball v. Dunslerville, (4 T. R. 313,) the action was against two, upon a bill of sale executed by one of the defendants in the presence of the other, and by his authority, they being partners in this transaction, and using but one seal. It was objected, that the authority given by one to the other to execute a deed, should have been conferred by deed ;
In the case of Clement v. Brush, (3 Johns. C. 180,) it was -decided that a scaled note given by the defendant, in the name of himself and partner, though the sealed instrument was void as to the partner, it was good against the defendant, and extinguished the partnership debt for which it was given. And in Markay v. Bloodgood, (9 Johns. R. 285,) an arbitration bond, signed by one partner, where the other partner had approved it, was held to be valid, though that other was not present and assenting at the moment of execution, hut was by in the store, though perhaps not in the same room where the bond was signed. In pursuance of the same principle, it has been held, that a bond and warrant of attorney to confess a judgment, signed by one of two partners for himself and partner, is void as to the partner not assenting, though for a partnership debt. On a motion to set aside such a judgment, (2 Caines, 254, Green v. Beals,) the motion being made by the partner who executed the bond and warrant, was denied. The court said, that on a plea of non esl factum, a verdict must have been found for the defendants, and that relief would have been granted to the partner who had not executed the bond and warrant. They said a separate suit might have been sustained against T. Beais, who had executed the bond. And Motteux v. St. Aubin, (2 Black. 1133,) was referred to, where the court set aside a judgment against an infant, leaving it in force against his surety. The case of Tom v. Goodrich, (2 Johns. R. 213,) was decided upon the same principle. There Tom had become surety for a partnership debt, in a bond with one of the firm. He was compelled to pay the bond, and brought his action against the firm for the money so paid; but this court held, that the giving the bond extinguished the partnership debt, and converted the demand into an individual one, and therefore the plaintiff’s only remedy was against the particular partner with whom he had executed the bond.
In the case of Buchanan v. Curry, (19 Johns. R. 137,) it was decided that one of two partners may discharge a partnership demand after a dissolution of the partnership. And further, if one partner enter into a submission to an arbitration in the name of both, and an award is made in favor of the partners, and if payment is made of the amount awarded and accepted by such partner, such payment "operates by way of release by one partner, or as an accord and satisfaction, and is binding upon both partners. It follows from these cases, that a submission by one partner in the name of both, is valid as to the partner who executes the bond, but void as to the other who never authorized his name to be used in that manner. Should an action be brought against the partner who signed the bond, he cannot take advantage of his own irregularity; but should an action be brought against both partners, upon a plea of non est factum, the defendants would be entitled to a verdict. The case of Green v. Beals shews, that a judgment entered upon a bond and warrant thus executed, would be held regular as to one, and irregular and void as to the other; that the party whose name has been thus used may waive the irregularity, and sanction the use of his name; that such sanction will be presumed from his silence; and that a motion to vacate such judgment, when made by the partner alone who executed the bond, will not be listened to. The court in that case said further, that it would not be necessary to vacate the judgment,.even on the motion of the partner whose name had been used without authority, but they would direct execution not to be served
It results, then, that one partner cannot do any act under seal, to affect the interests of his copartner, unless it is to release a debt. In the case of Buchanan v. Curry, a submission and award in favor of the firm, and an acceptance of the amount awarded, were held to operate as a release, or an accord and satisfaction ; but no such consequence, I apprehend, results from the award in this case. Had the award in the case of Buchanan v. Curry been against the
The very ground of this decision is,-that the evidence can have no effect against any one but the defendant who made the admission. In that case, in consequence of the outlawry of the three joint debtors, the plaintiff was enabled to proceed against one as if he were a several debtor, and the judgment to be obtained, would be a lien on the property of the defendant who was arrested, and no other of the partners or joint debtors; neither could execution affect the property of any other. Our statute has varied the common law in this respect. It allows the plaintiff to proceed to judgment upon bringing in one joint debtor, and judgment is rendered against all. That judgment is a lien upon all the joint real estate of the defendants. Execution issues against all, and may be levied on all the personal property jointly held by the defendants, as well as the separate property of the defendant arrested. The principle of that case, therefore, when applied to this, would exclude the award. It seems to me, therefore, that as well the weight of authority as of argument, prove that the award offered in evidence was properly excluded. That it came in collaterally, can make no difference. If it be admitted at all, it is to affect the rights of a person who was no party to it, and to whom the law affords a protection from its consequences. If admitted in this way, it has precisely the same effect upon Barrett, as if a joint action were brought upon the arbitration bond ; it must, therefore, be governed by the same roles of evidence.
2. The next question which I had proposed to examine is whether the award is valid 1 Perhaps the conclusion to which I have arrived, on the competency of the evidence of
The motion to set aside the nonsuit should be denied.