2 Blackf. 119 | Ind. | 1828
Kitchell, as agent for the defendants under an authority by deed, executed certain covenants in favour of the plaintiff, in which he transcended his authority in a material part of the covenants. On these covenants this action was founded. The defendants pleaded non est factum. On the trial of that issue, the plaintiff proved by competent testimony, that one of the two defendants, against whom this suit isprose
The question arising out of the refusal of the Circuit Court to give this direction to the jury, is the only point in the case. This question is simply this: Does the presence of one or both of the defendants in the room, at the time when their agent executed these covenants; aided by the opinion of the present agent of these defendants, that he considers himself authorised by them to treat such covenants as obligatory on them; amount in law to a ratification of these unauthorised acts of Kitchell, or to an adoption of these covenants as their own, so as to support the issue on the part of the plaintiff, that these are the deeds of the defendants? This question has been investigated with much skill and industry by the counsel on both sides, and many cases have been cited, most of which bear but remotely on the question.
In the case of Ball v. Dunsterville, 4 D. & E, 313, one partner executed a deed for himself and partner, in the presence and by the authority of his partner, and it was held to be the deed of both. In Harrison v. Jackson, 7 D. & E. 206, one partner executed a deed for himself and his two partners, in their absence; and it vras held that it was not the deed of the absent partners. Thus it appears, that although one partner cannot bind his co-partner by deed, yet a deed executed by one for himself and partner, in the other’s presence and by his authority, is the deed of both. It is the presence of the partner that does not seal, constituting an implied assent, which is construed into an adoption of the seal as his own, that renders it obligatory upon him. In the case before us, the defendants
Nor can the case derive any aid from the other branch of the testimony. These defendants, it seems, have another agent, who is transacting business for them relative to covenants executed by Kitchell, similar to those on which this action is founded, and liable to the same objections; and he conceives himself authorised by the defendants, to take up such covenants as if they were obligatory. Now what is the amount of this? Does it show that the defendants had any knowledge of the manner in which these covenants were executed, until they had oyer of them in the present action? It does not even show, that they knew the form of those other covenants of which the agent speaks; consequently, they cannot be supposed to have ratified,
The judgment is affirmed with costs.
Vide Posey v. Bullitt, Vol. 1. of these Rep. 99, and note.—Flood v. Yandes, id. 103.—Deming v. Bullitt, id.-241, and notes.