48 Wash. 415 | Wash. | 1908
This- is an action to recover the contract price of a quantity of lumber and a small amount of building paper. The amount sought to be recovered is $5,890. The action was brought by the vendor of the lumber against
The defendant O’Bryan, who appeared and defended, admits that Sullivan was a member of the partnership at the time he bought the lumber, but claims that as such partner he had no authority to purchase the lumber in behalf of the partnership, for the reason that the partnership was a non-trading one and existed for the purpose of carrying on a transportation business only. The court tried the cause without a jury and rendered a judgment in favor of the plaintiff for the full amount with interest against the partnership, enforcible against the joint property of the partners and against the separate or any property of the defendant O’Bryan. Defendant O’Bryan has appealed.
The court found that the sale was made to the partnership through the defendant Sullivan, a member of the firm; that
It is contended that the authority of Sullivan to bind the firm was not shown, in that it appeared that the partnership existed for a transportation business only, and that he was therefore not authorized to purchase lumber or other material for trading purposes. There was, however, no evidence to the effect that the purchase was made for trading purposes, and it was certainly within the scope of the partnership business to purchase lumber for some purposes. The partnership operated three steamers upon the Yukon river and handled a large amount of freight. The use of lumber for the construction of warehouses at terminal points or en route, for the housing of freight, or its use in the construction of barges, scows, or small boats, or in repairing the steamers, was certainly within the scope of the business of such a partnership, and this material was in fact used to construct a warehouse at a terminal point. Sullivan was at St. Michaels looking after the business of the partnership, and considering the nature and scope of the business as above stated he, as a partner, was a principal and had actual authority to purchase the lumber. He also had apparent authority to bind his partners. So far as third persons who deal with a partner without notice are concerned, the copartners are bound if the transaction be such as the public may reasonably conclude is directly and necessarily embraced within the partnership busi
In the case of Alley v. Bowen-Merrill Co., 76 Ark. 4, 88 S. W. 838, 113 Am. St. 73, it was held that a partner in a nontrading partnership may effectually bind his partners by an act apparently within the scope of the partnership. Whether the act of a partner is within the scope of his authority is a question of fact to be determined by the court or jury trying the facts. Dowling v. Exchange Bank of Boston, 145 U. S. 512, 12 Sup. Ct. 928, 36 L. Ed. 795. The fact in this regard having been determined by the trial court against the partnership, and the evidence in the record being, as we believe, sufficient to sustain the finding, we shall not disturb it.
It is insisted that the court erred in admitting in evidence the declaration of Sullivan to the effect that he would use, and did use, the lumber to build the warehouse. It is true the authority of an agent is not established by proof of his own declarations, but in this case the fact of the partnership and the general nature of its business were admitted, and the declarations of the partner that he did a specific act which act was clearly within the actual or apparent scope of the partnership business, was not a declaration as to his authority as an agent, but was the mere statement or admission of a fact concerning partnership transactions. As such the testimony was admissible against all the partners. 22 Am. & Eng. Ency. Law (2d ed.), 140; Griswold v. Haven, 25 N. Y. 595, 82 Am. Dec. 380; Coleman v. Pearce, 26 Minn. 123, 1 N. W. 846.
Some contention is made that appellant was surprised by respondent’s evidence tending to show the necessity for build
The judgment is affirmed.
Fullerton, Rudkin, Crow, Mount, and Dunbar, JJ., concur.