Mills v. Barber

4 Day 428 | Conn. | 1810

Brainerd, J-

(after stating the case.) The charge* I am of opinion, is supported by principles of law. It brings into test and consideration the power which one partner has over his fellow partner, and the partnership interest and concerns. And in the first place, it is very clear, that one partner cannot for himself and fellow partner, or under the firm of the, partnership, execute a deed. By a deed I understand an instrument under seal; an instrument to which the common law requires a seal. But as to property belonging to the one partner has the absolute power of disposing of the whole. He has the power of binding the company in the purchase of personal property to any amount; of giving, and, under the firm of the company, signing bills of parcels of all the goods of which the company may be possessed ; of cancelling bills of lading; of drawing and endorsing bills of exchange; of executing policies of insurance, and bills of sale of vessels ; and of assigning chases in action belonging to the company, in the same manner as an individual may assign his own. For I take it to be a principle of the law merchant, and of course of the common law, that all partners are bound by the acts of either done in relation to their joint trade or business; for in this relation one partner is the authorized agent of the others; that with regard to all personal property, both in possession and in action, each .partner necessarily has the same power and control over it, that any individual has over his own.

But it may be objected, that in addition to the assignment, there is a power of attorney; that a power of attorney is a deed within the common law definition of a deed, an instrument under seal; that this instrument has no seal, and cannot have, as none but a corporation has a common seal; yet a power of attorney operating without interest as a delegation of authority solely for the benefit of the constituents may be considered as a deed, and, as such, ought to be executed by all the parties under their respective hands and seals. But if the position be true, that one partner has the power of assigning a chose in action belonging to the company, the assignment is the essence of the transaction; the power of collecting results as an incident; it follows of course, although not expressed.

In this opinion the other judges severally concurred.

New trial not to be granted.