16 Wis. 87 | Wis. | 1862
By the Courts
It will probably not be contended that an action would lie for the value of the pump so sold to the appellant, until he was in default in neglecting or refusing to deliver the cow according to the agreement. It is admitted, that by the agreement, they were to give the pump and four dollars, or thereabouts, for the cow. Since, then, the pump was not to be paid for in money, but by a specific article of personal property, it follows that the action cannot be' maintained unless the appellant has refused to deliver after a proper demand. It appears from the evidence that McBain made a demand for the cow, but we think it insufficient, for the reason that he had no written order from his partner, which we think was essential, according to the terms of sale. He says in his testimony, that when he demanded the cow of Austin, the latter refused, because he had no order from Foster. And Austin, himself, says that Foster directed him not to let the cow go without his order. It is not pretended that McBain had any such order when he made the demand, and therefore we are inclined to the opinion that Austin was not obliged to deliver it, on that ground alone.
The answer which is made to this objection is, that McBain and Foster were partner’s, and that one had as much power and control over the partnership matters as the other. But this does not fully meet the difficulty. The question is, assuming that McBain and Foster were partners, could not the latter bind the firm by the agreement which he made in respect to the delivery? The objection assumes that it was a condition of the sale, that the cow should only be delivered on an order from